Year: 1859

This was an action of ejectmeat in the Circuit
Court of Jackson County, in which the plaintiff had
judgment, and the defendant has brought the case
to this Court by an appeal in the nature of writ
of error.


The entire charge Of the Circuit Judge to the
jury is set out ia the bill of exceptions and appears
to be- in all respects accurate least we think the
defendant has no cause TO complain of it.


After the charge had been completed the defen-
dants counsel requested the Court to instruct the
Jury that if the defendant had been in possession
Of he land in dispute for twenty years before the
CONNIE Ieement of the suit, holding it as his own,
his possession being continued, peaceabe and unin-
terruped, the law would presume a deed TO him
from the plinif This instruction the Court refus>
ed give, and this refusal is assigned for error


To determine whether, or not it be error Of
which the defendant avail himself, so as to pro-
duce reversai of this judgment, we need only re-
fer to the leading facts in the record, and TO the
charge of he Court.


1t is manifest that though the defendant went to
live upon This land in 1885 aud has lived there ever
since. yet he did the tenant of tie plaintiff,
who is his father, and never held adversely to him.
He permitted the plaintiff during sll this time to
give in a0d pay the axes on this lan1 except for
the years 1858 and 1856, when his father told him
he bought that he ought to pay the taxes so
much of the land he used, oh ch he did for those
years. But in 1857, he ceased to pay the taxes his
father in 1886, having notified him not to plant q
crop or use Gne ianu LOT 1901, 81 ne sDOulQ want
the possession of it. In 1854 he actual rented
the land of his father. And in the same year, his
father ia his presence aud with his assent, as We
are forced 10 presume, from his record procured
surveyor aud had this, with other lands, surveyed
with view TO division among his children, but
which, for some cause, Wss never made In Janu-
ary 1857, when the plaintiff demanded the posses.
sion Of the land, the defendant pretended claim
to it, but actually requested the plaintiff to sell it.,
and give him part Of the proceeds Of the sale In
1885, when he married, his fa'Ie plsc hi a
part of this land, he cleared ard fenced thirty
acres. The plaintiff has also, al the while resided
on the tract in displtp the defendant, for part
Of the time, actually living with him in tue same
house. The defendant has no writings from the
plaintiff aud all tn can be said, is, that he, no
doubt sometime, iuten led to give all or part Of
this land to the defendant, but yet, has never
done so ZOO


Upon these facts the Court, among other things,
charged the jar,, that the defendant put into
possession of the place under a verbal gift of it
from his father, otherwise. and continued hold
il under such gif or otherwise, for the period of
twenty years. claiming it for himself all that time
they snould fad ior The defendant 10 the extent
OF hi enc ures, as the Law in such acass would re
sumo him grant, and vest him with Ghe title; or II
be went inlO uch possession. that is an adverse
possessicn under a claim Of ownership by gift from
his father and continued to hold ii for the period Of
sovea years before the suit was brought, then the
yer ct would be for the defendant. For This would
per Get tie bar of the statute of limitations Of sew
years, and protect the defendant in his posses
sion. TO the extent Of his actual enclosures.


But if the jury believed the defendants possession
a tenant, that is, that be took tie peace IN
der the plaintiff wiihoutany contract or without a
gif but to return the laud the plaintiff whenever
he should req ire him to do 50, this would net b.
such a holding as would protect him under the stat
ute Of limitations, unless he afterwards set up to
claim The lnod fur himself and continued to ho it
after be had set up tor seven years, AID the plain
tiff had notice of such adverse holding and permit
ted defendant t. continue after such notice. in the
possession of the land for seven years before he
ght suit, in which even, the defendant would
be pro &c cd by tne statute OF limitations, and the
jury should find for him


This charge embraced the entire ease, aud was
il seems 20 Us, favorable to defendant as could