If the relationship existing between Jack Sanders and Mariah Pryor was not of common-law marriage, but of concubinage or adultery, as insisted by appellant in his seventh assignment of error, then the only two issues of fact in the case were of heirship on the part of appellant under the marriage of Jack and Hester Sanders and the statutes of limitation pleaded by the appellees. As the record admits both the heirship of appellant and complete limitation by appellees, the sustaining of the seventh assignment, which we think must be done, necessarily requires the overruling of the other assignments complaining of the court's charge, for the reason that the only judgment warranted by the record was the one entered by the court, and hence the charge of the court was without any injury to appellant. The court submitted the issue to the jury of common-law marriage between Jack Sanders and Mariah Pryor. Appellant requested the court to peremptorily instruct the jury, and here insists, that the relationship existing between the two was that of concubinage or adultery. This assignment and contention must be sustained as required by the record. As a marriage of Mariah and Jack was not proven, appellant cannot predicate in the record any contention that Mariah's possession and claim of the land was as widow or heir of deceased and subordinate, and not adverse to his rights as an heir. As Mariah was not the widow or heir of Jack Sanders, as contended by appellant, then she was in a position and relation to the land at the inception of her claim and possession to commence and continue as any other stranger adverse possession and occupancy against appellant. So, under the proven facts, appellant, as the heir of Jack Sanders, was entitled to recover the land, unless his right was barred by the statute of limitations pleaded. As the record admits a complete limitation title in the appellees, there remained no issue of fact to go to the jury, and the appellees were entitled to have a peremptory instruction in their favor on limitation. So in the record the sustaining of the contention made by appellant in the seventh assignment makes any error pointed out in the objections to the court's charge harmless error.
The judgment is affirmed.