Eagle v. Franklin , 71 Ark. 544 ( 1903 )

Biddick, J.,

(after stating the facts). To entitle one to have partition of lands, he must not only have title, but must have possession, either actual or constructive, of the lands which'he asks to have partitioned. If there be no dispute about the title, the possession of one tenant in common will be deemed for the benefit of all his co-tenants; but, if the allegations of the answer in this case are true, the defendant is in the exclusive possession of the premises which plaintiff seeks to have partitioned, holding them adversely under color of title.

The answer, therefore, if we follow our former decisions, sets up a good defense to the action of partition, and we are of the opinion that the court erred in sustaining a demurrer to it. Ashley v. Little Rock, 56 Ark., 391; Criscoe v. Hambrick, 47 Ib., 235; Moore v. Gordon, 44 Ib., 334; London v. Overby, 40 Ib., 155.

The adverse possession of the defendant, if proved, will defeat the action for partition, but the court may, if it sees proper to do so, retain the cause on its docket, and allow plaintiff time in which to establish her title by an action at.law. London v. Overby, 40 Ark. 155.

Beversed and remanded, with an order to overrule the demurrer, and for further proceedings.