“While it is true that the land described in the deed . . . does not include the strip in controversy, still [appellee’s] 7 grantor . . . thought it did, and at the time of the conveyance transferred to her the possession of it in fact . . . . This was sufficient even if it be conceded there was no conveyance of it in writing, and constituted such privity as entitled [appellee] to avail of his or their adverse possession and to tack her possession to theirs if necessary to complete her title and claim of ownership.”
How later courts described this case
- “While it is true that the land described in the deed . . . does not include the strip in controversy, still [appellee’s] 7 grantor . . . thought it did, and at the time of the conveyance transferred to her the possession of it in fact . . . . This was sufficient even if it be conceded there was no conveyance of it in writing, and constituted such privity as entitled [appellee] to avail of his or their adverse possession and to tack her possession to theirs if necessary to complete her title and claim of ownership.”
Written by the judges who cited it.
The opinion
McCulloch, C. J., (concurring). It is established by undisputed evidence that the defendant’s investiture of title to the strip of land in controversy by adverse possession is complete, and I concur in the judgment on that ground alone. I do not believe it is sound to say that the plaintiff, by asking for a peremptory instruction in its own favor, without accompanying the request with one for other instructions, waived its objection to defendant’s request for a peremptory instruction or waived its right to have disputed questions of fact submitted to the jury. It is not correct, according to my view, to hold that parties waive the right of trial by jury by separately asking the court for a peremptory instruction. That is not equivalent to joining in a request to the court to decide the issues of fact, instead of submitting them to the jury.
The question of legal sufficiency of evidence is a question of law which must be decided by the court. Catlett v. Railway Co., 57 Ark. 461 ; St. Louis, I. M. & S. Ry. Co. v. Coleman, 97 Ark, 438. A party has the right to test that question by obtaining a ruling of the court thereon, without waiving his right to go to the jury on disputed questions of fact in the event that the court rules against his contention. He does not, by making a fruitless effort to obtain a peremptory instruction in his own favor, waive the right to object to a peremptory instruction in favor of his adversary, nor does he thereby agree that the court may take the case away from the jury and decide the issues of fact.
The contrary view, as announced by the majority, may be consistent with the practice in other jurisdictions where the combs laid down this rule, but it is inconsistent with the practice which has always prevailed here, and I think it is wrong.