We are of opinion that the court did not err in excluding the evidence offered to establish a right by pre-emption. A right of pre-emption could not be acquired upon titled In-nd. The claim constituted neither title nor color of title to support the plea of the statute of limitations.
It is not material to ascertain the respective rights of the plain*500tifís. It is not denied that some of them were entitled to maintain the action.
The defence relied on was the statute of limitations $s to th@ six-hundred and forty acre tract claimed by the defendant. ' Upon this defence, the parties, by agreement, submitted to the jury the issue of adverse possession by the defendant for three years next preceding the commencement of suit: and further agreed, that the co'urt should decide the case upon the" verdict upon this issue,- “ and on the proof generally in other respects.’5 The finding of the jury was for the defendant; but the court, notwithstanding the' verdict, gave judgment for the plaintifís, and refused a new trial asked by the defendant, because the judgment was not in accordance with the verdict and the law of the case. It doe's not appear upon what ground the court disregarded the’ verdict It seémS that some of the plaintifís were in possession; aiul having the superior title, their constructive possession would extend to all the land not" embraced by the defendant’s inclosure. It devolved on the* defendant to make out his defence* in evidence-, and if the plaintiffs Were shown to have been in possession before suit, it devolved on him to prove that it was not continued a sufficient length of timo to prevent the completion of the statutory bar in- his favor, in order to entitle him to the benefit of the statute as to- any’ portion of the land not embraced within his inclosure*. But as to the' land so embraced, the verdict, if warranted by the* evidence, Wars'decisive in Ms favor. If the verdict "Was not Warranted by the' evidence, it should have been set aside, and a new triad granted upon the issue Upon wMch trial by jury had not beeS waived’, To give judgment for the plaintiffs, notwithstanding the verdict, and refuse a new trial, Was to deny the defendants the right of trial by jury. Having in effect set aside the verdict, the court manifestly erred in refusing a- new trial; fot which the judgment must-be reversed and the case' remmuted,
Reversed and remanded.