Gibson v. Allen-West Commission Co.

SMITH, J. Appellee recovered judgment against appellants in unlawful detainer brought to recover possession of a certain eightly-acre tract of land, of which about sixteen acres were in cultivation. As ground for the reversal of the judgment it is insisted that the testimony establishes the following facts: That the land was occupied by Manuel Gibson and his wife, Sevella Gibson, for tlwenty years or more; that Gibson died in possession of the land and claiming title thereto, and that since his death Sevella has occupied the land either in person or by her tenant and co-appellant, Henry Weston, who is also her son-in-law. It is also insisted that while the proof does show that! Weston during the year prior to the institution of this suit occupied the land as the tenant of appellee, no showing of tenancy is made as against Sevella Gibson, and that the judgment should have been rendered against Westlon alone and not against her. The trial was before a jury, but at the conclusion of the testimony both sides asked a directed verdict and neither side asked any other instruction; and the court was, therefore, warranted in finding the factls and in directing a verdict in accordance with that finding. Webber v. Rodgers, 128 Ark. 25. So that the question for us to determine is whether the testimony, viewed in the light mostl favorable to appellee, is legally sufficient to support the finding made in its favor. When thus viewed, the testimony may be stated as follows: Appellee had succeeded, in some manner not shown in the record, to the title and right of possession of one Rosenberg, from whom Sevella Gibson had rented the land for several years. Indeed, upon her cross-examination she admitted having paid rentl on the land to Eosenberg for five or six years; and according to one witness who testified in appellee’s behalf Sevella first rented the land in 1912 or 1913 and rented the land for three or four years, while appellee had acquired the Eosenberg title in 1915 or 1916. If this witness was correct—and Sevella Gibson denies that he was—then Sevella herself became appellee’s tenantl. Appellee’s representative and agent testified that after Sevella Gibson left the land it was rented to Weston for the year 1917, and the rent for- that year was paid, and thati Weston continued to occupy the land for the year 1918, but refused to pay the rent for that year, whereupon this suit was brought. Sevella Gibson admitted that she had spent most of the years 1917 and 1918 away from the land, but denied thati she had abandoned her claim of dower and homestead and the privilege to occupy under those rights, and testified that her temporary absence was occasioned by the attention she was required to give to two afflictled sons, who did not live on the land, and that during her absence her possession was continued by Weston, her tenant and son-in-law. 'But, as has been said, the court was warranted in finding that Weston had attorned to appellee, and even if Sevella herself had notl done so, she had attorned to appellee’s immediate predecessor in possession and title, and having done so, they could not thereafter dispute appellee’s right of possession without having first surrendered this possession. James v. McDuffy, 202 S. W. 821; Burton v. Gorman, 125 Ark. 141-144, 145; Adams v. Primmer, 102 Ark. 380-382-383; Dunlap v. Moose, 98 Ark. 235; Washington v. Moore, 84 Ark. 220. Judgment affirmed.