Price v. Greer

• Decision Date: 26 April 1909
• Citation: 118 S.W. 1009
• Parties: PRICE v. GREER.
• Court: Arkansas Supreme Court

118 S.W. 1009

PRICE v. GREER.

Supreme Court of Arkansas.

April 26, 1909.

On rehearing. Former opinion modified.

For former opinion, see 116 S. W. 676.

McCULLOCH, C. J.

We said in the former opinion: "The evidence does not show the amount and value of timber cut from each tract, and the verdict of the jury fixes the gross value of timber cut from all the land." We erred in this, and our attention is now called to it. The court, at defendant's request, instructed the jury to state in the verdict the amount of timber cut from each tract, and the jury returned a special verdict finding separately the amount of damage for cutting timber from each of seven tracts. The amounts aggregated $721, for which the court rendered judgment for the plaintiff, and only one of the tracts was embraced in the suit of Andrews against Greer to quiet title. The amount of damages for cutting timber on this tract was fixed by the verdict at $160, and it is contended that a remittitur of this sum will cure the error which we found in the proceedings.

The other six tracts were embraced in the deed from Andrews to Greer executed pursuant to the contract of September 24, 1902, which was after the statute bar had attached in favor of Greer. With respect to that we said in the former opinion that: "The fact of Greer having accepted a conveyance from Andrews of lands not embraced in the suit to quiet title would not necessarily have been a recognition of Andrews' title and ownership so as to remove the statute bar in Greer's favor which had already attached." In the case of Hudson v. Stillwell, 80 Ark. 575, 98 S. W. 356, we announced the law on this subject as follows: "Any act done after seven years' occupancy in recognition of the claim of the original owner would only be important when done by the same person who held for the statutory period, as a circumstance tending to show the character of the possession, whether adverse or not."

The defendant made no request for the submission of this question to the jury, but contended that the acceptance by Greer of a deed from Andrews at that time estopped him to claim title adverse to Andrews and his former grantee, Price. He cannot therefore complain that the court failed to instruct on this point.

We are of the opinion that a remittitur of $160, which the plaintiff offers to enter, and which reduces the judgment to $561, will eliminate the error in the proceedings.

Rehearing is therefore granted, and judgment will be entered...