"Defendants filed answers, pleading `not guilty', and defendant, C. M. Frost, plead the Statutes of Limitation of three (3), five
(5) and ten (10) years [Vernon's Ann.Civ. St. arts. 5507, 5509, 5510]. Defendants, C. M. Frost, also filed a cross-action against plaintiff, seeking to recover said land, and in said cross-action alleged title to said land under the Statutes of Limitation of three (3) and ten (10) years [Vernon's Ann.Civ. St. arts. 5507, 5510].
"Plaintiff filed a supplemental petition, denying the allegations contained in the answers filed by defendants, and alleged that the title to the land involved herein was vested on March 4, 1923, in Mrs. M. C. Mateer, under whom plaintiff claims and holds, and that on said date said Mrs. M. C. Mateer died, and no administrator or executor was appointed or qualified within one year over the estate of said Mrs. M. C. Mateer, and, therefore, the law of limitations ceased to run for one year, immediately following March 4, 1923.
"The case was tried before a jury, and at the close of the evidence, defendant C. M. Frost asked for an instructed verdict, which was refused, and, in lieu thereof, the court peremptorily instructed the Jury to return a verdict for plaintiff, and against defendants on their cross-action, which was done, and judgment was rendered by the court on November 22, 1933, based upon said verdict, and defendants excepted and gave notice of appeal."
"First Assignment
"The Court erred in rendering judgment for plaintiff, because the record shows that John D. Taylor, having conveyed the whole of the League to the estate of Charles S. Hudson, deceased, the curator, executor, or administrator of said estate was not shown to have been authorized to execute the deed reconveying the property to John D. Taylor, and, therefore, plaintiff has no title to the land in controversy.
"Second Assignment
"The Court erred in rendering judgment for plaintiff, because the record shows that the administrator of the estate of Eliza M. Hill was not authorized to execute the deed to S. L. S. Ballowe conveying lots eight (8) and nine (9) of the subdivision of the John D. Taylor League, because the administrator, prior to such sale and deed, had not qualified as administrator, and had not filed his oath and bond, all as required by Statute, and, therefore, plaintiff has no title to the land in controversy.
"Third Assignment
"The Court erred in rendering judgment in behalf of plaintiff, because the record shows that the deeds from Myra E. Spencer (formerly Smalley) to C. C. Morse, dated August 1, 1893, and the deed from E. C. Smalley to Myra E. Spencer, dated April 30, 1894, and the deed from M. E. Spencer to C. C. Morse, dated May 1, 1894, and the deed from E. C. Smalley to C. C. Morse, dated June 20, 1896, undertaking to convey 337 acres in the John D. Taylor League, devised to them by the will of their grandmother, Harriett George, through which deeds plaintiff claims, were void because of lack of description therein, it appearing that at the time of the death of Mrs. Harriett George, she owned of record much more land in the John D. Taylor League than 337 acres therein, and the deeds giving no description identifying said 337 acres, and, therefore, plaintiff has not the whole title to the land in controversy.
"Fourth Assignment
"The Court erred in rendering judgment in behalf of plaintiff, because the record shows that the deeds last above referred to only undertook to convey, as shown in the deeds, whatever rights the grantors therein had in said land which was bequeathed to them by their grandmother, Harriett George, by her last will and testament, which was probated and recorded, the record showing that said parties had acquired other interest therein, by the statute of descent and distribution, from William B. Canfield, Hannah P. Morse, Mary Elizabeth Smalley and Harriett George, and, therefore, plaintiff has not the whole title to the land in controversy, and it must be presumed that defendant, C. M. Frost, has acquired such other interest by reason of his present and prior possession of the land.
"Fifth Assignment
"The Court erred in rendering judgment in behalf of plaintiff, because the evidence shows that the plaintiff has not acquired the interest of Ennis C. Smalley, and/or the interest of Elmyra E. Smalley, grandchildren of Harriett George, and/or the interest of the heirs of Charles S. Hudson, and/or the interest of the heirs of Eliza M. Hill, in the land in controversy, and that defendant C. M. Frost, now holds such interest in the land through a presumed deed
from said parties, or their assigns, by reason of his present and prior possession of said land, and, therefore, plaintiff has not the whole title to said land, but the defendant, C. M. Frost, has the whole of it or an interest therein.
"Sixth Assignment
"The Court erred in peremptorily instructing the Jury to return a verdict in behalf of plaintiff, because the evidence raises the issue, which should have been submitted to the Jury, whether defendants, and those under whom they hold, have matured a title to the land in controversy, under the Statutes of Limitation of ten (10) years, which was not submitted by the Court.
"Seventh Assignment
"The Court erred in peremptorily instructing the Jury to bring in a verdict for plaintiff, on the theory that the deed from O. L. Hubbard to Walker broke, interrupted and terminated the limitation and adverse possession claimed by Tobe Caldwell, and those claiming through him, because Tobe Caldwell being in adverse possession of said land in controversy, conveyed the same to Hubbard with the agreement that he should clear up said title by judgment, or otherwise, for the title thereto, and that Hubbard would hold the title in trust for himself and Caldwell, and that Caldwell should continue the adverse possession thereof for the use of himself and Hubbard and his assigns, and that whatever recovery may be had, one-half thereof shall be for the use and benefit of Tobe Caldwell and the other one-half for himself and whomsoever he may have employed or assigned; and, in order to finance such litigation O. L. Hubbard made a deed to J. W. Walker describing said land, retaining the vendor's lien and superior title to secure the payment of two vendor's lien notes, aggregating practically the whole of the purported purchase price, Tobe Caldwell still remaining in adverse possession, claiming the land under the agreement aforesaid, and within one year J. W. Walker reconveyed to O. L. Hubbard, in consideration of the cancellation and redelivery to J. W. Walker of the notes executed by him to O. L. Hubbard, such deed from O. L. Hubbard to J. W. Walker did not break, interrupt or terminate the limitation and adverse possession claimed by said Tobe Caldwell, or his heirs, for the benefit of themselves and the said O. L. Hubbard, and his assigns, and O. L. Hubbard retained the superior title to said land, under the deed to J. W. Walker, as Trustee, and the actual possession by Tobe Caldwell and his heirs gave notice, and all persons were charged with notice and inquiry, of their rights and claims, and the issue of limitation should have been submitted to the Jury.
"Eighth Assignment
"The Court erred in refusing the request of defendants, after they had withdrawn their announcement of closing their testimony, to introduce as their witness, J. W. Walker, who was then in Court, ready to testify, and who would have testified, had he been permitted, that he accepted the deed from O. L. Hubbard to himself, under an agreement that he would and did hold the title to said land as Trustee for, and in trust for the heirs of Tobe Caldwell, Sr., and said O. L. Hubbard, and himself, and such lawyers as may have been employed, or might be employed, for the purpose of bringing suit to clear up the title to Tobe Caldwell, and his heirs, to the property in controversy, the testimony being offered after defendants' great surprise at the intimation made by the Court that said deed from O. L. Hubbard to J. W. Walker had the effect of terminating and breaking the limitation and adverse possession claimed by Tobe Caldwell, and those claiming under him, said further testimony being offered for the purpose, as stated, in rebuttal to, and in explanation of, the deed of O. L. Hubbard to J. W. Walker, which had theretofore been introduced in evidence by plaintiff, and in rebuttal to, and to overcome, the intimation by the Court, made after closing, that he might hold that said deed broke and overcame defendants' claim of limitation, because the evidence would not have materially delayed the trial and no prejudice to plaintiff would have resulted, and such refusal by the Court was an abuse of its sound discretion, and the additional testimony offered should have been...
