French v. French's Heirs ( 1871 )

Opinion by

Judge Lindsay:

The verdict and judgment in this case are certainly not so palpably against the weight of the evidence as to authorize the interference of this court.

We do not perceive that the court erred to the prejudice of appellant in giving the instructions asked for by appellees.

The second instruction is, in our opinion, more favorable to appellant than it should have been. " The facts that appellant lived upon the land in controversy and received the rents and profits are given undue prominence of being selected out as strong evidence of ownership to be rebutted only by the further fact that during all that time he held the same under his son, and not adverse and hostile to the latter’s title.

The fifth instruction asked for by appellant was properly refused. It was not necessary to prove notice to quit.

The petition alleges that possession had been frequently demanded and refused, and it clearly appears that appellant disowned his tenancy, and claimed 'against the appellees before the institution of this suit.

This hostile claim upon his part exonerated the appellees from the necessity of giving him such notice. The Revised Statutes, in our opinion, do not change the old rule upon this subject. The appellant could not have been prejudiced by the admission as evidence the deed from Dudley to the ancestor of the appellees.

James, for appellant. Craddock, for appellee.

Judgment affirmed.