Hudson v. Stillwell

98 S.W. 356, 80 Ark. 575, 1906 Ark. LEXIS 187

• Court: Supreme Court of Arkansas
• Decided: November 26, 1906
• Status: Published

Opinion

McCulloch, J.

This action involves a controversy between the respective owners of two coterminous tracts of land, as to the location of the boundary line. The precise location of the line is disputed, and, in addition to that issue, the defendant asserts that they, and those from whom they deraign title, have adversely held the land in controversy for more than .seven years before the commencement of the action, and they plead the statute of limitations in bar of the plaintiff’s right to recover. The testimony is conflicting as to whether the occupancy of defendant and those from whom they obtained title had been adverse, or whether it was based upon a mistake as to the true boundary line and the occupancy had been in subordination to the claim of the true owner, whensoever asserted.

The court gave the following instructions over the objections of defendant, viz.:

“Second. The defendant in this case, J. A. Hudson, owns a life estate in Spanish Grant No. 2354; and if he agreed with the plaintiff to have the lands surveyed within a period of seven years prior to the commencement of this suit, and to be governed by the survey, this agreement would take it out of the statute of limitation, and he would be bound by said survey as to his interest in said land.

“Third. The minor defendants in this case are not bound by any agreement made by the defendant, J. A. Hudson, as to survey of said land or agreements made with the plaintiff herein, unless you should find that he was the general agent of his wife, manag- • ing and controlling her interest in her estate. If you find he was her general agent for said purpose, and he agreed to have the lines run, and be governed thereby, and said agreement was made within seven years prior- to the trying of this suit and in the lifetime of his wife, then you will find against defendants, and the plea of the statute of limitation.”

The instructions were erroneous, according to the ruling of this court in the recent case of Shirey v. Whitlow, ante p. 444.

The evidence established that the occupancy by the ancestor of the defendants -began more than twenty-five years before the commencement of this action, and, if it was adverse, it ripened into title by limitations more than seven years before the commencement of the action. If the occupancy was adverse for the statutory period, it operated as a complete investiture of title, and a subsequent executory agreement to readjust the boundary lines dr any other act done in recognition of the validity of plaintiff’s claim to the land would not remove the statute bar and reinvest the title. Shirey v. Whitlow, supra; Bayles v. Daugherty, 77 Ark. 201; Parham v. Dedman, 66 Ark. 26; Fulton v. Borders, (Ky.), 61 S. W. 1001.

Any act done after seven years’ occupancy in recognition of the claim of the original owner would only be important, when done by the same person who had held for the statutory period, as a circumstance tending to show the character of the possession, whether adverse or not. Shirey v. Whitlow, supra. If done by a subsequent holder under grant, devise or inheritance from one who had held adversely for the full statutory period so as to' amount to an investiture of title, such act of recognition would not be important for any purpose.

On account of the error committed in giving those instructions the judgment is reversed, and the cause remanded for a new trial.