268 S.W. 858 | Ark. | 1925
The donation deed under which appellee claim was void, and was not color of title. Therefore, if it be true that appellee held possession of part of the land which was inclosed adversely for a sufficient time to acquire title, they did not thereby acquire title to the land that was uninclosed.
Appellants filed an answer denying the material allegations of the complaint, and alleging ownership in themselves by purchase through mesne conveyances from the State's patentees, E. S. Crossett, who purchased one of the forties in 1899, and J. H. Hostetter, who purchased the other in 1904 from the State as internal improvement land. The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, which *485 resulted in a verdict and consequent judgment in favor of appellees for the land, from which is this appeal.
The first and main contention of appellants for a reversal of the judgment is that the undisputed evidence shows that appellees' possession was permissive and not adverse. Mary McHenry obtained a donation deed from the State to the lands in controversy on June 4, 1885, reciting that said lands had forfeited to the State for the taxes for the year 1878. She, together with her husband and children, immediately moved upon and improved the land. They built three houses thereon, fenced and placed a part of it in cultivation. Mary McHenry paid the taxes thereon until 1898, when the collector refused to accept taxes because it was internal improvement land. Neither she nor appellees paid taxes on the land after that time. The place was originally known as the Mose McHenry place. After a time Mose McHenry died, and his widow, with their children, continued to reside upon the place. Mary McHenry died in 1908, but her children continued to live upon the property. Later, one or more of them died, and some of them married and moved away. One of them, Thomas J. McHenry, was living on the place when appellants moved thereon, and he continued to reside there until after the first suit for the property was instituted. The first suit for the property was brought in 1921, but was dismissed a short time before the instant suit was commenced.
The testimony on the part of appellees tended to show that, from the time their mother took possession of the land in 1885 until her death in 1908, she actually, openly, continually and notoriously occupied the land, claiming title thereto.
Appellants introduced testimony tending to show otherwise.
This issue of fact was submitted to the jury under proper instructions, and appellants are bound by the adverse finding of the jury.
It is true that, between the dates Crossett and Hostetter patented the land in 1899 and 1904 and the *486 time this suit was instituted, some of the grantees in the chain of appellant's title cut the valuable timber off of the land and collected rent for a, few years from two of the heirs, but the heirs explained that the timber was cut and the rents collected from them because they were afraid of the parties who cut and removed the timber and collected the rents. Appellants and their ancestors were ignorant negroes.
There is ample evidence in the record to support the finding of the jury that the possession of the lands by appellees and their ancestors was not permissive but, on the contrary, was adverse to the world.
The next and last contention of appellants for a reversal of the judgment is that appellees' title by adverse possession must fail because the testimony did not reflect any definite description of that part of the land which they and their ancestors actually occupied, and that, in no event, could they claim that part of the land outside of the inclosure which they and their ancestor maintained upon the land. It is true that one claiming a prescriptive title to lands can only claim to the boundaries of his actual possession, but not so when he claims under an instrument in writing constituting color of title. In that event his possession extends to the boundaries designated in the instrument. Appellants argue that, because the donation deed was executed before the lands were obtained and while they were held by the State as internal improvement lands, the deed was void and was not such color of title as might be used by the grantees therein to mark the boundaries of their land. In support of this argument they cite the case of Brinneman v. Scholem,
No error appearing, the judgment is affirmed. *488