Stull v. Stull

Opinion by

Mb. Justice McCollum,

The plaintiffs claimed title to an undivided six elevenths of the land in dispute. That they were heirs of Jacob Stull, Jr., who died seized of said land was admitted. The defendants claimed title to the land as heirs of Jacob R. Stull who was one of the heirs of Jacob Stull, Jr., and who the defendants allege acquired title to it by a continuous, exclusive, adverse and hostile possession of it for more than forty years. It may properly be stated here that four of the heirs of Jacob Stull, Jr., sold and conveyed their interest in the land to Jacob R. Stull, and that six of the heirs of Jacob Stull, Jr., never sold or surrendered their interest in it to him. The heirs who retained their interest in the land were not presumed to have lost it. They were tenants in common with Jacob R. Stull, and it devolved upon the defendants who claimed title under him to show such a possession and use of the land by their ancestor as operated as an ouster of his cotenants.

On the trial of the case the jury returned a verdict in favor of the plaintiffs for six elevenths of the tract in dispute. As the motion of the defendants for a new trial was refused by the court below an appeal was taken to this court.

The defendants have filed in this court thirteen assignments of error. The first assignment relates to the cross-examination of Sylvester Paul, a witness for the defendants and the second, third and fourth relate to the exclusion of evidence. In these assignments we find no error prejudicial to any right of the defendants.

The fifth, sixth and seventh assignments complain of or criticise the excerpts selected from the general charge, which in its entirety is unobjectionable. We therefore dismiss these assignments without further comment. The answer to the plaintiff’s second and fourth points and to the defendants’ fourth, fifth and sixth points are complained of in the eighth, ninth, tenth, eleventh and twelfth assignments. An examination of each of them separately has not satisfied us of error in either.

The motion for a new trial on the ground of the alleged misconduct of the jury was carefully considered by the learned judge of the court below, and finally dismissed by him in a clear and convincing opinion in accord with our own cases and the decisions in other states.

Judgment affirmed.