The controversy in the case is entirely that of whether or not John M. Rogers, Jr., owned the 99 acres, or the north one-half of the homestead, by a deed and by limitation. If he did not own the entire tract of 99 acres, then each party to the suit would be entitled to receive the proportion of the land admitted and agreed to by such parties. The point made on appeal is that the court erred in giving the defendants' special charge No. 2. The charge complained of in effect informed the jury that in order to find "peaceable, adverse, continuous and exclusive possession" of the land on the part of John M. Rogers, Jr., they must look to "other evidence in the case" besides that of "possession of the land and payment of taxes thereon." The charge, as framed, is on the weight of the evidence, and in view of the sharp conflict in the evidence was prejudicial, requiring the reversal of the judgment.
The objections made to certain evidence is not passed upon, since upon another trial the assigned errors may not occur.
Reversed and remanded.