64 Ark. 100 | Ark. | 1897
(after stating the facts.) The evidence, so far as it was developed at the trial, tends to show that the defendant was a mere intruder, without title other than possession; and the question for us to determine is whether the evidence of title introduced by plaintiff was sufficient to sustain a recovery against such defendant. The general rule is that in an action of ejectment the plaintiff must recover upon the strength of his own title, but this does not require the plaintiff in all cases to trace his title back to the government or first grantor, but only to exhibit such a title as will put the defendant to proof of a title superior to mere naked possession. A deed, other than from the government, is not of itself alone evidence of title; but a deed accompanied by proof of actual possession and claim of title thereunder is a sufficient showing of title to recover against a' mere intruder, although such possession has not continued for the statutory period of seven years. Title may, in the absence of other evidence, be inferred from possession alone, and, as against a defendant who relies upon possession only, it is sufficient for the plaintiff to show an actual peaceable possession under the color of title prior in point of time to the possession of the defendant. Cook v. Bertram, 86 Mich. 356; McFarlane v. Ray, 14 Mich. 465; Christy v. Richolson, 48 Kas. 177; 2 Ballard’s Law of Real Property, § 507; Sedgwick & Wait’s Trial of Title to Land (2d Ed.), § 717. The deeds introduced in evidence by appellant in this ease do not of themselves show title, for they do not go back to the government, or to any one shown to have been the owner of this land. The fact that the records of the county where the lands lay had been destroyed by fire in 1877 does not supply this defect in the title, for, while such fact might open the way for the introduction of parol proof of the contents of any record or deed destroyed by said fire, it does not dispense with the necessity of showing that a record or deed existed. As appellant’s claim of title was not complete, it was necessary for it to show actual possession of the lands in controversy, either by itself or by those under whom it claims title. The evidence shows that plaintiff, and those under whom it holds, have claimed title to and paid taxes on this land for many years, but we have searched the transcript in vain to find any evidence tending to show actual possession of this land by plaintiff or those under whom it claims title. The fact that plaintiff paid taxes on the land; that it appointed an agent to look after the land, who on several occasions took parties to see it, and walked over it, and tried to sell it; that on one occasion plaintiff did sell the land, and afterwards foreclosed its lien, and purchased the land,— these facts do not show actual possession of the land by plaintiff. Thompson v. Burhans, 61 N. Y. 52; S. C. 79 N. Y. 93; Paine v. Hutchins, 49 Vt. 314; Scott v. Mills, 49 Ark. 266; Brown v. Rose, 48 Iowa, 221; 2 Dembitz on Land Titles, § 181. Neither does the fact that on one occasion the agent of plaintiff gave permission to a farmer to lodge some of his cotton pickers in the hut which had been erected upon the land by a squatter. If we should concede that a temporary occupation of this hut by cotton pickers under the permission of plaintiff would be sufficient to establish an actual possession by plaintiff, still there is no evidence to show that the land was occupied in that way. The evidence shows that permission was given, but it does not show that possession was taken. The facts above referred to show that plaintiff claimed title to the land, and, if actual possession had been shown, these circumstances would serve to indicate the nature of such possession, and show that it was adverse, but they do not of themselves show possession.
Our conclusion is that the plaintiff failed to make out a case, and that the court did not err in directing a verdict for defendant.
The judgment is affirmed.
