St. Louis Southwestern Railway Co. v. Mulkey , 100 Ark. 71 ( 1911 )

Kirby, J.,

(after stating the facts). It is claimed by appellant that the court erred in directing a verdict for appellee, and by appellee that, since each party asked for a directed verdict in his favor, neither can complain after judgment that such direction was improper.

It has been frequently and uniformly held by this court that it is not proper to direct a verdict for one of the parties, if there is a disputed question of fact. It has also been held by our court in Pacific Mutual Life Insurance Co. v. Carter, 92 Ark. 278, 123 S. W. 384, that when one of the parties asks a peremptory instruction and also requests other instructions upon the questions in the case, he does not thereby waive his right to have disputed questions of fact submitted to a jury. We have not before passed upon the question of a directed verdict where each party has requested a peremptory instruction in his favor, and neither has asked for other instructions.

If the case presented a disputed question of fact, either party had the right to require its submission to the jury, who could have decided the issue for either according to its view of the evidence, and their verdict would have been conclusive, if there was any testimony sufficient to sustain it.

It is also true that the parties had the right to waive a jury and submit the matter to the court for trial in the first instance, and, each having requested the court to direct a verdict in his favor and not having requested any other instruction, they in effect agreed that the question at issue should be decided by the court, and waived the right to the decision of a jury, and the court’s decision and direction has the same effect as would have been given to the verdict of the jury upon the question at issue, without such direction. Green v. Schute, 7 N. Y. Supp. 69; Stratford v. Jones, 97 N. Y. 586; Merwin v. Magone, 70 Fed. 776, 17 C. C. A. 361; Love v. Scacherd, 77 C. C. A. 8 and note; Sigua Iron Company v. Brown, 64 N. E. 194; 171 N. Y. 488; First M. E. Church v. Fadden, 77 N. W. 615, 8 N. D. 612; White v. Bradley Timber Co., 58 C. C. A. 58; McGuire v. Hartford Insurance Co., 158 N. Y. 680; Gilligan v. Supreme Council, 26 Ohio 42; Mascott v. Fire Insurance Co., 69 Vt. 116, 37 Atl. 255.

The testimony is practically undisputed that Ingram, who bought the lot now owned by appellee in 1895 or 1896, fenced the strip of land in controversy, inclosing it with said lot in his front yard. Explaining his possession, he testified: “I understood it was mine all the time. I claimed it as the land I bought from the Southwestern Improvement Association and was holding it as mine, as I thought all the time it was, and so occupied and held it for fifteen or sixteen years until I sold it to Wadley or Mrs. Mulkey, and didn’t know any better till after the railroad survey was made.” The fact that he was mistaken as to the correct boundary line did not prevent his possession being adverse to the trae owner since he inclosed the land by putting his fence where he believed the line was, and claimed and occupied all the land inclosed as his own. Wilson v. Hunter, 59 Ark. 626; Bayles v. Dougherty, 77 Ark. 201.

It is next contended that appellee can not claim the benefit of the adverse possession of her grantors because their deeds to her do not include the land. While it is true that the land described in the deed to her does not include the strip in controversy, still her grantors, whose adverse possession had probably already ripened into title, intended it should, and thought it did, and at .the time of the conveyance transferred to her the possession of it in fact, intending that she should have all the land within the inclosure. This was sufficient, even if it be conceded that there was no conveyance of it in writing, and constituted such privity as entitled her to avail herself of his or their adverse possession and to tack her possession to theirs if necessary to complete her title and claim of ownership. Memphis & L. R. Rd. Co. v. Organ, 67 Ark. 94; Wood on Limitations, § 271, pp. 695-6 and cases cited; 1 Cyc. 1006.

Upon the undisputed testimony appellee was probably entitled to a directed verdict, but in any event, the parties having waived a decision by the jury by their said requests for peremptory instructions, the court committed no error in directing the verdict, which is amply sustained by the evidence.

The judgment is affirmed.