(after stating the facts). — The court below erred in charging the jury affirmatively to find for the plaintiffs. The undisputed facts in proof were that the deed of conveyance to the plaintiffs, under which alone they claimed any right in or title to the land in dispute, was executed and delivered when the grantors therein were not in the actual possession of the land in controversy, but when the defendant Smith was in the actual possession thereof claiming title thereto as former purchaser thereof. There was conflict in the proofs as to whether Smith had fully paid the agreed purchase price for the land.
It was for the jury to pass upon this conflict. If the question had been left to the jury, as it should have been, and they had arrived at the conclusion that Smith had not paid the full purchase price, then the law is that his possession was not adverse to the title of his vendors and the deed from such vendors to the plaintiffs in such event would have been effectual to convey title to them as against Smith. Gamble v. Hamilton and House, 31 Fla. 401, 12 South Rep. 229. But if, on the other hand, the jury had found from the conflicting evidence that Smith had in fact fully paid the agreed purchase price of the land, then in such event his admitted possession would have been adverse in law to the title of his vendors, and then, in such event, the deed from the heirs of his vendors made to the plaintiffs while he was in such adverse possession, would have been ineffectual to convey to them any such title as would have sustained a recovery in their favor in ejectment as against Smith. And in the latter event such deed, if executed and delivered while ■ Smith was in the adverse possession of the land, was not enough to drive him to the exhibition of any other title than his actual adverse possession of the land at the time of the execution of such deed, and if the jury believed from the evidence that the defendant Smith was in the actual adverse possession of the land at the time of the execution and delivery of such deed to the plaintiffs, their verdict should have been in favor of the de*220fendant. Dubois v. Holmes, 20 Fla. 834; L’Engle v. Reed, 27 Fla. 345, 9 South. Rep. 213; Fla. So. Ry. Co. v. Burt, 36 Fla. 497, 18 South. Rep. 581.
As this disposes of the whole case, there is no necessity to notice other errors assigned. For the error adjudged the judgment of the court below is reversed and a new trial ordered, the cost of the appellate proceeding to be taxed against the defendants in error.
Hocker and Shackleford, JJ., concur.
Carter, P. J., and Maxwell and Cockrell, JJ., concur in the opinion.