Conditt v. Holden

• Citation: 123 S.W. 765,92 Ark. 618
• Parties: CONDITT v. HOLDEN
• Decision Date: 13 December 1909
• Court: Supreme Court of Arkansas

123 S.W. 765

92 Ark. 618

CONDITT v. HOLDEN

Supreme Court of Arkansas

December 13, 1909

Appeal from Jackson Circuit Court: Charles Coffin, Judge; reversed.

Reversed and remanded for new trial.

Manning & Emerson, for appellant.

Appellees having failed to comply with the law with reference to the taking up of estrays, are not entitled to relief under the statute of limitations, and will not be heard to say that the statute began to run in 1904. Kirby's Dig., §§ 7833 to 7856, inclusive. The bar of the statute is postponed or avoided by fraud in the defendant committed under such circumstances as to conceal from the plaintiff all knowledge of the fraud, and thus prevent him from asserting his rights. 68 Ark. 455; 25 Cyc. 1173. The statute runs only from the time the fraud is discovered. 61 Ark. 527; 139 Ind. 545; 91 S.W. 866; 90 S.W. 884; 112 N.W. 184; 89 P. 317; 85 S.W. 761; 2 App. D. C. 387; 9 L. R. A. 764; 31 Me. 448; 82 N.E. 505.

Joseph W. Phillips and Gustave Jones, for appellees.

The mule was never concealed nor hidden, but was taken possession of by appellees at a public gathering, under the belief and claim that it was their property, and was held as such openly and notoriously, continuously thereafter. There is no evidence of fraud. By inquiry appellant could have learned at any time that appellees had taken up and claimed the mule as their own. "The statute begins to run with the possession." 44 Ark. 30. See also 10 Ark. 238.

OPINION

MCCULLOCH, C. J.

This is an action to recover possession of a mule. In the trial below plaintiff introduced testimony tending to show that he was the owner of the property in controversy, and that defendants' possession was wrongful. Defendants introduced no testimony, but the court instructed the jury peremptorily to return a verdict in favor of defendants on the ground that they had been in possession of the mule for more than three years, and that plaintiff's right of action was barred. The testimony introduced by plaintiff was sufficient to establish the following state of facts:

Plaintiff who is a farmer living at Tuckerman, in Jackson County, Arkansas, owned the mule in controversy. In the fall of 1903, when the mule was less than two years old, it was on the range near what is known as the Hale Place, in Jackson County, with other mules owned by plaintiff. The Hale Place is about three miles distant from the defendants' farm. He lost trace of the mule, and did not see it again until he found it in possession of defendants in June or July, 1908. He identified the mule by its color and size, and by the brand "RC" on its left shoulder, which he had put there when the mule was a colt. Defendants claimed to have purchased the mule from a man named O'Neal, but there is testimony tending to show that this is untrue, and that, when confronted with the fact that the mule bought from O'Neal had died, they claimed that they got this one from a man named Yelvington. The defendants refused to give up the mule, and this action was commenced on July 22, 1908.

Dave Conley testified that in March, 1904, a mule of the same description as the one in controversy followed his mare out of a deadening near the Hale Place, and followed the mare when he rode her over to a log rolling on defendants' farm; that when he hitched the mare at the log rolling the mule grazed nearby. He said that one of the defendants "sorter quizzed" him about the mule, asked who owned it, where it came from, whether or not it was branded, etc., and finally caught the mule and carried it off. Other witnesses identified the mule as the one which followed Dave Conley's mare to the log rolling, and all testified that the mule was branded "RC" at that time. Plaintiff testified that between the time he first found the mule in the possession of defendants and the trial the brand on the mule had been tampered with in an attempt to change it.

The evidence adduced at the trial, which, for the purpose of testing its sufficiency to support a verdict, we must accept as true shows that the mule in controversy was and is the property of plaintiff; that it became an estray in the year 1904, and was taken up by defendants and converted to their own use without posting the animal in the manner prescribed by statute. They laid claim to the animal as their own when they took it up, but the evidence shows that this claim was entirely unfounded, and that it was not made in good faith. The statutes of this State provide that a person taking up an animal which is an estray shall immediately post it, examine the records for corresponding marks or brands, report it to a justice of the peace, cause it to be appraised, and exhibit it in the stray pen of the county between the hours of eleven o'clock A. M. and...