Turquett v. McMurrain , 110 Ark. 197 ( 1913 )

Wood, J.,

(after stating the facts). One of the issues presented by the pleadings was as to whether or not appellant and appellee had agreed upon a boundary line between their adjoining lands. The court correctly presented this issue in instruction No. 2, given at the instance of the appellant. This instruction was in accord with the rule announced in Payne v. McBride, 96 Ark. 168. But, in instructions given at the instance of appellee, the court made the appellant’s right of recovery depend solely upon whether or not he had occupied the land by adverse possession for seven years, intending to claim the same as his own, regardless of whether or not the line established by the Puckett survey was the true boundary between them.

One ground of appellant’s objection to these instructions, given at the instance of the appellee, was that they were in conflict with instructions given at the request of the appellant, and “because they were confusing to the jury, in connection with the instructions given for appellant. ’ ’

-These instructions, given at the instance of the appellee, ignored the contention of the appellant as to the boundary being established by parol agreement, and the court erred in not harmonizing the instructions.

The court erred in modifying the appellant’s prayer for instruction No. 9, by striking out the words, “and can not be considered at all, unless you find that the rental contract was made unconditionally.” The testimony of the appellee, it is true, tended to show that appellant promised to pay rent for the year 1912, and that this promise was made without condition, which would tend to show a recognition of the title to the property in the appellee, and that appellant agreed to occupy the same as his tenant. But the testimony of the appellant, on the other hand, tended to show that he agreed to pay rent to the appellee for the year 1912 only upon condition that it should be afterward determined that appellee was the owner of the strip of land in controversy, which fact appellant at that time was controverting. Now, the court, by striking out the words mentioned, permitted the jury to consider the agreement upon the part of the appellant to pay rent for the year 1912 as tending to show an unconditional recognition of appellee’s claim of ownership in the land in controversy. This was highly prejudicial to appellant, for, according to his testimony, the agreement to pay rent was only by way of a compromise or settlement of the issue between them as to the occupancy of the land for the time being, that is, until it should be legally determined as to who was the owner of the land in dispute. In other words, the declarations of appellant, as he contends, were in the nature of a temporary compromise of that issue, and not at all a recognition of appellant’s claim of ownership.

The striking out of the words objected to deprived the appellant of the benefit of this contention before the jury. The testimony of the declarations of appellant, tending to show his agreement to rent the land, would be competent only on the issue of adverse possession, provided they were not made, as he claimed, by way of temporary compromise of a matter that was then at issue between him and the appellee.

We find no substantial error in the other rulings of the court, but for those indicated, the judgment must be reversed and the cause remanded for a new trial.