Vittitow v. Burnett
| Decision Date | 30 March 1914 |
| Citation | 165 S.W. 625,112 Ark. 277 |
| Parties | VITTITOW v. BURNETT |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Circuit Court; Eugene Lankford, Judge affirmed.
W. N Carpenter and Manning, Emerson & Morris, for appellant.
1. Where a party has had a verdict instructed against him, on appeal the evidence should be given its strongest probative force in his favor. 95 Ark. 560.
2. The testimony of W. N. Carpenter, attorney for appellant, was improperly admitted. Kirby's Digest, 3095.
3. In ejectment, plaintiff must recover upon the strength of his own title. 92 Ark. 84; 80 Id. 31. No patent was shown from the United States.
4. Appellee showed title by adverse possession. 98 Ark. 30; 49 Id. 266.
Rasco & Botts, for appellee.
1. Questions and objections not raised below will not be considered here. 59 Ark. 215; 61 Id. 515; 62 Id. 543; 70 Id. 197.
2. The letter from Carpenter was not a confidential communication. 40 Cyc. 2363, 2375, 2377.
3. Appellant's possession was not adverse. 34 Ark. 547; 3 Am. Dec. 227; 68 Ark. 551; 81 Id. 258; 1 Cyc 992-997-8. Appellant admitted appellee's title within the statutory period. 80 Ark. 444; 26 Am. Dec. 95; 96 Id. 456; 1 Cyc. 1034; 27 Ark. 92; 30 Am. Dec. 218.
4. A verdict was properly directed for appellee. 105 Ark. 526; 91 Id. 340; 97 Id. 442; 103 Id. 401; 57 Id. 461.
On the 8th day of October, 1910, L. W. Burnett instituted an action of ejectment against C. P. Vittitow to recover the possession of a certain tract of land in Arkansas County, in the State of Arkansas. The evidence adduced in favor of the plaintiff, L. W. Burnett, is substantially as follows:
On the 14th day of October, 1902, L. W. Burnett recovered judgment in an action in ejectment against C. P. Vittitow for the land in controversy. Since the recovery of that judgment up to the time of the institution of this suit, Burnett has paid the taxes on said land for every year except 1909. Burnett is a nonresident of the State of Arkansas, and he sent to the sheriff of Arkansas County the taxes on said land for the year 1909, and the sheriff returned it to him with the information that C. P. Vittitow had paid the taxes. Burnett received from C. P. Vittitow the following letter:
Subsequently, Vittitow employed W. N. Carpenter, an attorney for the purpose of obtaining whatever title Burnett had to the land, and requested him to write to Burnett for that purpose. Pursuant to this direction, Carpenter wrote to Burnett, and that part of the letter which is material to the issue raised by this appeal is as follows:
C. P. Vittitow, the defendant, testified in his own behalf substantially as follows:
For a short time after Burnett recovered judgment against me for the land in controversy in the suit decided in 1902, I did not keep the fences up, and they ran down. Shortly after that suit I fixed the fences up again, and have been in continuous possession of the land since that time, and have claimed it as my own.
Other evidence was introduced on behalf of the defendant tending to show that he had been in possession of the land since a short time after the suit above referred to was decided against him in 1902.
At the conclusion of the evidence, the court directed the jury to return a verdict in favor of the plaintiff, Burnett, and the defendant, Vittitow, has appealed.
Counsel for defendant say that the plaintiff, in his complaint, stated that there was a patent to the land from the United States Government, and that in the proof introduced at the trial it is not shown that the title to the land had ever passed from the United States Government. Therefore, they contend that, in the application of the well settled rule in this State that a plaintiff in ejectment must rely upon his own title, plaintiff was not entitled to recover in this case.
It is the well settled law in this State that a judgment of a court of competent jurisdiction upon a question directory involved in one suit is conclusive as to that question in another suit between the same parties. In 1902 there was pending in the circuit court an action of ejectment by the plaintiff in this case against the defendant to recover the same land. The plaintiff recovered judgment on October 14, 1902, and the judgment in that case established a possessory right at law in the plaintiff to the land, and is conclusive of that issue. Dawson v. Parham, 55 Ark. 286, 18 S.W. 48. See, also, Morgan v. Kendrick, 91 Ark. 394, 121 S.W. 278, and cases cited. It follows that the judgment rendered in favor of plaintiff against defendant in 1902 conclusively established plaintiff's right of possession to the land in controversy, and it was not necessary to introduce the patent from the United States Government.
Section 3095 of Kirby's Digest provides that an attorney shall be incompetent to testify...
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Kilgo v. Continental Casualty Co.
...... to a third person. The rule applicable in such cases was. stated by this court in the case of Vittitow v. Burnett, 112 Ark. 277, 165 S.W. 625, where it was. said: "The object of the rule (section 3095 of. Kirby's Digest, which provides that an ......
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Dial v. Armstrong
...... was entirely consistent with the idea of permissive. possession. . . In the. case of Vittitow v. Burnett, 112 Ark. 277,. 165 S.W. 625, this court held that where a party admits title. to land to be in another, his possession thereof is not. ......
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Arkansas Nat. Bank v. Cleburne County Bank
...... See [258 Ark. 332] Vittitow v. Burnett, 112 Ark. 277, 165 S.W. 625; Morgan v. Wells, 242 Ark. 499, 415 S.W.2d 323; Ehlers v. Rose, 182 Ark. 131, 30 S.W.2d 849; Kilgo v. ......
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Dial v. Armstrong
...1908 until his death July 15, 1933, was entirely consistent with the idea of permissive possession. In the case of Vittitow v. Burnett, 112 Ark. 277, 165 S.W. 625, this court held that, where a party admits title to land to be in another, his possession thereof is not hostile to the true ow......