[238] The Court has now come around to the view which I expressed in my dissent to the original opinion that justice would not be served by remanding the case, and the court proceeds to decide the case on the evidence now before it.
[239] I adhere to the views expressed in my dissent to the original opinion, but, even if I agreed completely with the opinion on rehearing as to its finding of fact in regard to the time of Wisdom Johnson's possession, I nevertheless could not conclude that judgment should be rendered for the plaintiffs. As I understand the majority opinion, it turns upon the one fact that Wisdom Johnson did not go on the property until after Calder had been divested of title, and from this the court concluded that Calder never had the necessary possession to start the running of the acquisitive prescription.
[240] The record conclusively establishes that Walter Dexter and his family remained on the property after his sale to Calder and did not remove therefrom until they were forcefully evicted by Wisdom Johnson in the name of Calder. Under the law of this state the unexplained continued possession of a vendor is presumed to be for the benefit of the vendee, so that the possession of Walter Dexter after his sale to Calder was presumed to be for the benefit of Calder. There is no evidence in this record to show that Walter Dexter's possession was hostile to Calder, or to show that his conduct was such that Calder would know that a new order of things had begun.
[241] For the reasons stated in my dissent to the original opinion and for this reason also, therefore, I am of the opinion that Calder had the necessary possession and that judgment should be rendered for the defendants sustaining the plea of prescription of 10 years acquirendi causa.
[242] McCALEB, Justice (dissenting in part).
[243] The only reason why I voted for a rehearing in this case was because I entertained some doubt as to the correctness of our holding that a mineral lessee, not being a third purchaser, acquired no greater right than his lessor and was therefore not entitled to rely on the faith of the public records. After a reconsideration of this matter, all my doubts have been dispelled and I am satisfied that the ruling is correct. The validity of the reasons for the ruling are convincingly demonstrated by the majority opinion on rehearing.
[244] However, I cannot agree with the conclusion reached on this rehearing affirming the judgment of the district court as I still harbor the view that the case should be remanded for the purpose of hearing testimony relative to the date upon which Wisdom Johnson took possession of the land as a tenant of George Calder. The holding that the case should not be remanded is based on the ground that, since defendants bore the burden of proving possession in George Calder in order to establish title under their plea of the 10-year acquisitive prescription, their claim must fail as possession has not been shown.
[245] But I am not so sure that possession by Calder has not been proved. That Wisdom Johnson obtained possession of the property as a tenant of Calder, either in the year 1914 or 1915, is not seriously questioned. This is shown by the uncontradicted testimony of a number of witnesses and was regarded as an established fact in the original majority opinion and the separate opinions of the two dissenting justices. The only matter about which any doubt was expressed concerned the date of Wisdom Johnson's possession. Clearly, if his possession as tenant of Calder was during the time that Calder owned the property, the plea of prescription is good and defendants should win their case. On the other hand, if Wisdom Johnson's possession for Calder was subsequent to the time the Central Savings Bank Trust Company acquired the property at foreclosure sale, and without the bank's consent, then the plea of prescription would not be well founded according to the view set forth in the original opinion.
[246] For my part, I believe that the interest of justice requires a remand of the case for the purpose of hearing evidence, if any can be obtained, on this important question. And it will not do to say that the possession of Calder, through Wisdom Johnson, has not been established merely because the date of that possession is somewhat obscure — for, as pointed out in the original opinion, "it is obvious that neither the plaintiffs nor the defendants explored this question fully in the trial below * * *". Indeed, plaintiffs practically conceded possession in Calder when the case was originally argued and briefed in this court, basing their entire contention on the fact that the bad faith possession of Anding could not be tacked on to the good faith possession of Calder.
[247] In addition, a remand of the case would appear to be most appropriate when consideration is given to the fact that the justices, who have made a careful study of the record, have reached diverse conclusions in their appreciation of the evidence touching upon Calder's possession. Thus, the Chief Justice, in the opinion on rehearing, is very positive that no possession in Calder has been established but Justice Hawthorne, in his original dissent, was convinced that not only does the record establish possession of Calder through Johnson but that Johnson's possession occurred during the time when Calder was the record owner of the property. And justice ad hoc Viosca, the author of the original opinion, finds possession by Johnson, as tenant of Calder, but concludes that the date of that possession is indefinite.
[248] I believe that the original opinion should be reinstated.