Gibson v. Allen-West Commission Company

• Decision Date: 31 March 1919
• Docket Number: 164
• Citation: 211 S.W. 142,138 Ark. 172
• Parties: GIBSON v. ALLEN-WEST COMMISSION COMPANY
• Court: Arkansas Supreme Court

211 S.W. 142

138 Ark. 172

GIBSON v. ALLEN-WEST COMMISSION COMPANY

No. 164

Supreme Court of Arkansas

March 31, 1919

Appeal from Miller Circuit Court; Geo. R. Haynie, Judge; affirmed.

Judgment affirmed.

J. M Carter, for appellants.

1. The testimony shows that Sevilla Gibson was in lawful possession of the land for many years under claim of title that she and her husband occupied the land for twenty years or more, that her husband died in possession, and after his death she occupied the land in person or by her tenant. Weston Gibson claimed the land under purchase and died in possession. Rosenberg, the former owner, during his life told her the place was hers for a lifetime home, and for her to pay the taxes, and she did. This permission was sufficient interest or ownership for her to hold the land against appellee but against all others, as she was in possession, which was notice to the world of her claim. 55 Ark. 294. Even if the judgment against Weston is supported by the evidence, yet as to Sevilla Gibson there is a total want of evidence to sustain it. A verdict should have been directed for both defendants as asked.

Moore Smith, Moore & Trieber, for appellee.

1. This is unlawful detainer, and Weston claims no interest in the land; he was a tenant, but his lease had expired, and he refused to vacate or pay rent. Mrs. Gibson was also a tenant but seeks to set up a defect in appellee's title. A tenant can not dispute the landlord's title. He must first surrender possession and then bring suit. 84 Ark. 220. Both parties asked a peremptory instruction only, and thus the court's direction in favor of appellee has the effect of a verdict of a jury and is conclusive. 105 Ark. 25; 118 Id. 134; 63 Ark. Law Rep. 331. Both appellants were tenants by permission only, and were holding over unlawfully. 2 Tiffany, Landlord & Tenant, par. 2730; 16 R. C. L. 1182; 120 Am. St. Rep. 55; 66 Ark. 145. The judgment should be affirmed as to both appellants, as no valid ground is shown for disturbing a judgment on the equivalent of a verdict by a jury.

OPINION

SMITH, J.

Appellee recovered judgment against appellants in unlawful detainer brought to recover possession of a certain eighty-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 twenty 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 Weston 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 facts and in directing a verdict in accordance with that finding. Webber v. Rodgers, 128 Ark. 25, 193 S.W. 87. So that the question for us to determine is whether the testimony,...