Jeffery v. Jeffery

• Decision Date: 12 October 1908
• Parties: JEFFERY v. JEFFERY
• Court: Arkansas Supreme Court

113 S.W. 27

87 Ark. 496

JEFFERY v. JEFFERY

Supreme Court of Arkansas

October 12, 1908

Appeal from Izard Circuit Court; John W. Meeks, Judge; reversed.

Judgment reversed and cause remanded.

J. B Baker, for appellants.

1. The paper title is in P. H. Jeffery, the appellant, and the verdict of the jury is not sustained by the evidence. No title is shown in the mother of appellees, and the proof does not show seven years open, notorious, adverse possession, nor that their ancestor died in actual possession. 15 Cyc. L. & P. 36-39 and notes; 43 Ark. 320. No superior title is shown. 15 Cyc. L. & P. 40, 41, notes.

2. No color of title is shown, nor is there proof of adverse possession for the requisite period; 27 Ark. 632; 65 id. 422; 31 id. 334; 77 id. 244, 477; 76 id. 163; 64 id. 100.

3. It was error to admit the statements of the deceased father. 10 Ark. 398; 15 id. 255; 70 id. 427; 44 id. 213. They were incompetent. 6 Ark. 109; 24 id. 111; 40 id. 237.

McCaleb & Reeder, for appellees.

1. Possession of land for the full period of limitation amounts to an investiture of title, without color of title. 34 Ark 534; id. 547; 48 id. 312; 65 id. 422; 33 id. 150.

2. The statements of the father in his lifetime, as to the ownership of the land, were properly admitted. 1 Enc. of Ev. n. 76; 12 id. 566; 33 Ark. 150; 65 id. 422; 77 id. 309; 95 Am. Dec 208.

3. The evidence is ample to sustain the verdict.

OPINION

HART, J.

This is an action of ejectment brought in the Izard Circuit Court by the plaintiffs, M. E. Jeffery, W. W. Jeffery and R. M. Jeffery, against the defendants, P. H. Jeffery and the Mt. Olive Stove Company, for the possession of the lands described in the complaint.

Plaintiffs allege that their mother, Mary A. Jeffery, departed this life intestate on the 19th day of August, 1892, leaving them as her children and only heirs at law, and that at the date of her death she was seized and possessed of the lands described in the complaint. That the plaintiffs became tenants in common of said lands, subject to the curtesy of their father, Asa Jeffery, who held possession of the lands until his death, which occurred in June, 1906. That the plaintiffs and their said ancestors have held the open, notorious, peaceable, continuous and adverse possession of said lands for more than seven years continuously prior to the year 1904, claiming it as their own, and that they became the owners thereof by virtue of the statute of limitations.

Defendants answered, denying the allegations of the complaint, and affirmatively set up title in themselves by virtue of a commissioner's deed executed pursuant to the judgment and order of the probate court of Izard County.

The evidence is sufficiently stated in the opinion in discussing the effect of it.

There was a jury trial and a verdict for the plaintiffs, and defendants have appealed.

Defendants contend that the verdict is not sustained by the evidence. In this they are correct. It is not disputed that the paper title is in the defendant, P. H. Jeffery. In 1873 Asa Jeffery, the father of the plaintiffs, and Ambrose Jeffery, while they were partners in business, bought the land in controversy at a guardian's sale in the probate court, and executed their note for the purchase money. They were indebted to the defendant, P. H. Jeffery, for service rendered the firm, and assigned to him their certificate of purchase in payment therefor and for the further consideration that he pay the balance due by them on the purchase money. This he did, and by order of the probate court the deed was executed to him, reciting the above facts. Plaintiffs claim title by the adverse possession of themselves and of their ancestors. In support of their claim, they testified that their father, Asa Jeffery, had told them that the land in controversy belonged to their mother. These declarations were not admissible for the purpose of establishing adverse possession, but were only admissible to show the character and extent of his possession. Seawell v. Young, 77 Ark. 309, 91 S.W. 544.

The only other evidence is that of witnesses who testify that P H. Jeffery had admitted to them that the land in controversy belonged to Asa Jeffery, and that he had paid a mare at one time and some cotton...