Fleming v. Canterbury

WILLSON, C. J. (after stating the facts as above). It appears from the record that the trial court based the judgment entirely on the finding of the jury .set out in the statement above. Therefore the judgment should be reversed, if the contention presented by propositions in appellants’ brief, to wit, that the testimony did not authorize the finding so far as it was that the possession of appellee and those under whom he claimed was adverse and continuous for a period of ten years before the suit was filed, should be sustained. Careful consideration of the testimony has convinced us that the contention should be sustained. [1,2] It appeared that Gen. Henderson moved onto the land when he and Crawford purchased it in >1890, and that he resided thereon until he died in 1901 or 1902. Henderson and Crawford being tenants in common, Henderson’s possession of the land never became adverse to Crawford unless and until he repudiated such tenancy and Crawford had notice of such repudiation. Parsons v. Hubbard, 226 S. W. 441. Perhaps the testimony was sufficient to support a finding that Henderson repudiated the tenancy and that Crawford knew it, but we doubt if it was sufficient to show when such repudiation occurred. The only testimony in the record which can be said to have tended to prove when such repudiation occurred is that showing that, whereas Henderson and Crawford each rendered one-half of the land for taxes for 1891 and to and including the year 1897, Crawford never afterward rendered any of it, and Henderson rendered all of it for 1S98 and each year thereafter until he died. If that testimony warranted an inference as to the time when Henderson repudiated the tenancy, it certainly did not authorize a finding fixing the time at a day earlier than January 1, 1898, for by law Henderson could not have rendered the land for the taxes of 1898 before that day. If Henderson’s possession became adverse then, it does not appear from the testimony that such possession by him and those who claimed under him continued for a period of ten years from that time. There was testimony that Henderson’s children cultivated the land after he died until 1907, and that Crawford, with the consent of Henderson’s widow, moved to it the latter part of 1906 or first part of 1907, and lived upon it until March of the year last mentioned. We have not found any testimony, in the record showing that Henderson’s widow, or any of his children, or any one claiming under them or any of them, had possession of the land, “cultivating, using, or enjoying” it, within the meaning of the statute, after March, 1907, until 1913. Even if the possession of Crawford for the two months, about,' he was on the land, should be treated as the possession of Henderson’s widow, the most favorable view which could be taken of the testimony relied on to support the finding of the jury is that the statute of limitations commenced to run in Henderson’s favor January 1, 1898, and continued to run in his favor and in favor of his widow and children until March, 1907— a period of nine years and not exceeding three months. Appellee having failed to discharge the burden resting upon him to prove that he owned the Crawford interest in the land by force of the ten-year statute of limitation, the finding on which the judgment was predicated was not warranted. Therefore the judgment is wrong, and it will be reversed, and the cause will be remanded to the court below for a new trial. Footnotes [1] cgz^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes