Mack v. Felt

Hill, J. The special grounds of the motion for new trial are not argued or insisted upon in the brief of the attorneys for the plaintiff in error, and will be treated as abandoned. The defendant claims as sole legatee of her deceased husband, Thomas Mack, who died in possession of the land. The uncontradicted evidence showed that he had been in actual possession for more than thirty years at the time of his death, paying taxes thereon; but the evidence authorized a finding that his possession originated permissively and by consent of the heirs at law of Fannie Felt, under whom the .plaintiffs claim, and that the possession of Thomas Mack was permissive throughout his life and at the time of his death, which was less than seven years before the institution of the suit. In these circumstances the jury was authorized to find against a prescription based on such possession, and against a presumption of title based on the fact that Thomas Mack died in actual possession of the property. In this view the evidence was sufficient to support the verdict for the plaintiffs, and there was no error in refusing a new trial on motion based on the general grounds. Judgment affirmed. All the Justices concur.