Perry v. Arkadelphia Lumber Co.

HiEE, C. J. The Arkadelphia Lumber Company brought an unlawful detainer action against Plenry Perry and Rachel Perry, his wife, alleging that they were unlawfully in possession of a forty-acre tract under lease dated December 4, 1903; that the terms of the lease were broken, and after demand they had refused to deliver possession. The defendants answered, denying that they had leased the land of the Lumber Company, and alleged that in January, 1896, they had purchased the same from the Lumber Company, and shortly thereafter went into possession under said purchase, and had continuously from that time until dispossessed by the sheriff in this action, on November 3, 1905, held possession of the property, as a homestead. They asserted title by seven years’ adverse possession, and denied the validity of the lease, claiming that it was not properly acknowledged as a conveyance of a homestead, and it was without consideration, because at the time of its execution they were the owners of the property by adverse possession. The case went to a jury, and there was a verdict in favor of the plaintiff, from which the defendants have appealed, and present several questions as to the correctness of the instructions. It is unnecessary to go into the instructions, as the evidence of the defendant, Henry Perry, appellant here, showis that the court should have directed a verdict against him. He says that he made a purchase of the land in controversy in January, 1896, and went into possession of it and cleared up part of it and built a house upon it, and that he had lived upon the same with his wife ever since. Pie says that the first payment was to be in ties, and that he delivered 150 oak ties at 18c and 350 pine ties at 8c to apply on the first payment. He then called at the Lumber Company’s office a time or two to get a bond for title, but, failing to see the manager, dropped the subject. The contract of purchase is not in the record, and the evidence does not show how much the purchase price was; but it affirmatively appears from Perry’s testimony that the de-v ferred payments were never made. Excluding the lease which he assails, he admits that he remained in possession without any change in his attitude to those who put him in possession, and without any further payments after the delivery of the ties. What was said in Tillar v. Clayton, 76 Ark. 405, applies here: “The statute of limitations does not run against a vendor in favor of a vendee holding under a contract for sale and purchase; nor does it run where the original possession of the holder seeking to plead the statute was in privity with the rightful owner until there be an open and explicit disavowal and disclaimer of holding under that title and assertion of title brought home to the other party.” Citing numerous cases. Perry’s testimony shows that there was no “open and explicit disavowal and disclaimer” .of the title' under which he entered. And he shows that no assertion of any adverse holding was brought home to the Lumber Company. Therefore he has no case. Judgment is affirmed.