Love v. Turner

¶1 dissenting. I think the fourth exception should be sustained, and, therefore, I am unable to concur in the judgment of the Court.

¶2 5 The issues between the parties are set out at length in the opinion written by Mr. Justice Gary, and need not be restated here. The decision of the case depended mainly on the jury’s view of the evidence on the claims of title by adverse possession set up by both parties. The plaintiff alleged the heirs of C. B. Palmer had acquired title by adverse possession, and then conveyed to him; and he also alleged that he had acquired title by his own adverse possession. The first conveyances of the Palmer heirs to plaintiff were made at different dates from 1871 to 1876, describing the land conveyed as four hundred and forty-nine acres. In 1885 and 1886, new deeds were *522 made, describing the land as five hundred and seventy-six acres, and reciting that the grantors intended by the former deeds to convey the entire five hundred and seventy-six acres. Mrs. Love, the plaintiff’s wife, was one of the heirs, and her interest plaintiff claimed by adverse possession under a paper in the form of a will purporting to devise all of her property to him, but which was available only as color of title, because not legally executed. On the issue of adverse possession thus made by the plaintiff, the Circuit Judge, in accordance with the request made, by the defendant, charged the jury this proposition, limiting plaintiff’s claim of adverse possession : “Where a party accepts a deed of conveyance to land from another, such acceptance is recognition of title in the grantor which the grantee cannot dispute. So if, in 1S85 and 1886, W. P. Love accepted deeds from the heirs of G. B. Palmer, conveying the land in dispute, and if the Holloway land was not covered by the deeds of the heirs from 1871 to 1875, then the plaintiff recognized an outstanding title in the heirs to the land in dispute, and cannot show any title as against them by adverse possession before the acceptance of the deeds of 1885 and 1886.”

¶3 There was evidence of the plaintiff holding adverse possession by a tenant of the land in dispute after the deeds of the Palmer heirs of 1871 to 1875, and before the deeds of 1885 and 1886. If the plaintiff held possession of the land so that he had acquired a title by adverse possession prior1 to the deeds of 1885 and 1886, there is no ground whatever for saying he could not avail himself of a title so acquired, merely because he chose to- strengthen his title by obtaining conveyances from other claimants. This instruction clearly deprived the plaintiff of the benefit of the consideration by the jury of his evidence of title acquired by adverse possession before the execution of the deeds of 1885 and 1886, and was, therefore, prejudicial on a vital issue in the cause.