Peeples v. Wilson

Atkinson, J.

1. In a suit for land, where the plaintiff relied for recovery on .prescriptive title, based on actual adverse possession without color of title for a period of twenty years, as provided in the Civil Code, § 3588, and there was evidence tending to show such possession of some part of the land less than the whole, in charging the law of prescription the jury should have been so instructed as to restrict a recovery under such claim of prescription to such part of the land as was in actual possession of the prescribor for the requisite period'; and the more especially should the judge not have refused so to charge upon timely and appropriate written request.

(a) The evidence tending to establish a prescription by seven years adverse possession under color of title was not without conflict, and was not of such character as to have rendered harmless the error committed • by'refusing to charge in accordance with the ruling announced in the above note.

2. On oral argument before this court the assignments of error referred to in the first, second, and third grounds of the amended motion for new *601 trial were expressly abandoned. Except as indicated in tlie first headnote, other grounds are insufficient to require the grant of a new trial.

June 16, 1910. Equitable petition. Before Judge .Fite. Murray superior court. July 12, 1909. W. W. Sampler, C. N. King, and W. K. Mann, for plaintiffs in error. G. L. Henry and Maddox, McCamy Shumate, contra.

Judgment reversed.

All the Justices concur.