Kilpatrick v. Trotter

ANDERSON, J. The plaintiff showed the possession of his grantors to the lot of which the strip in question was part, and introduced the deeds from them getting their title into him, and it was undisputed that the said strip was a part of the lot as described in the said deeds. The plaintiff, therefore, made out a prima facie case, and showed a right to recover as against any one not showing a superior title. The defendants relied upon an actual adverse possession of the strip in question for a period of ten years, for the purpose of defeating the plaintiff’s right to recover. The first actual possession shown was in 1900, by Dr. Stough, who had his lot fenced, and included therein the strip in question, and it may he conceded that he took possession of same as a purchaser of the north lot, and with the understanding that the strip was a part of said lot, and that he did not therefore have to file a written declaration, under section 1541 of the Code of 1896; but the Code of 1907 became operative May 1, 1908, and before the expiration of ten years, and before the said possession could ripen into a title, and, as there has been no compliance with section 2830 of the Code of 1907, the time between the adoption of said Code of 1907, and the bringing of the suit cannot be tacked to the period from 1900 to May 1, 1908. In other words, the defendant nor any one under whom he claims has shown a recorded deed purporting to convey title to [549] the strip in question, nor does she bring herself within the influence of the other provisions of said section 2830, as to assessment of taxes or a claim by descent or devise as to the particular strip in question. It may be true that there was proof that permission was obtained, by one Trotter from Crittenden, to cut two trees off of the land in question after Crittenden had sold the south lot to Gilder, but, as Crittenden was the vendor of Gilder, in the absence of proof to the contrary, the presumption is that Crittenden, by exercising acts of dominion over the said strip, did not intend to claim it adversely to his grantee, if said strip was a part of the land covered by the deed to Gilder. It was also shown that Dr. Stough, prior to inclosing his lot in 1900, built a smokehouse on the strip in question, but at the time he was a tenant living in the Gilder house, and in possession of the south lot; and, while, at this time, he owned the north lot, then unoccupied, there is nothing to indicate that he did not, in placing the smokehouse on the strip, do so as the tenant of Gilder, instead of for the purpose of making it a part of his own lot, as said smokehouse was built by him and used by him while using the premises of Gilder, and this one act was certainly not so notorious as to impress Gilder, or any one else, that the smokehouse was built on the strip for the purpose of mailing it a part of the Stough lot, instead of the Gilder lot. Moreover, if Stough was in possession of the south lot, as the tenant of Gilder, he could not claim any part of it adversely to said Gilder. The trial court did not err in giving the general affirmative charge for the plaintiff, or in refusing the one requested by the defendants, and the judgment of said circuit court is affirmed. Affirmed. Mayfield, Sayre, and de Graffenried, JJ., concur