I cannot agree with the majority opinion filed in this case. Under the first assignment of error, plaintiff in error, Houston Oil Company of Texas, complains that the evidence is wholly insufficient to support the verdict, for the reason that the defendants in error have not shown any evidence legally sufficient that they or those under whom they claim and with whom they are in privity have for a continuous period of ten years (less the period of suspension of the statute of limitation) claimed 640 acres or any definite amount of land while the same or any part thereof was in the possession of the defendants in error and those under whom they claim and with whom they are in privity.
Article 4621, Paschal's Annotated Digest (Act Feb. 24, 1841), provides:
"The person who has or shall have right of entry into any real estate, consisting of lands, tenements, or hereditaments, shall make entry therein within ten years next after this right shall have accrued, and on failure shall be forever barred thereafter."
This statute is not to be literally construed. It does not mean that every true owner must make actual entry within ten years or be thereafter barred. Horton v. Crawford, 10 Tex. 383. It applies only to cases of adverse possession. Redding v. Redding, 15 Tex. 251. There is no legal necessity for entry unless the land is claimed and held adversely to another.
Article 4624, Paschal's Annotated Digest (Act Feb. 4, 1841), provides:
"Ten years of such peaceable possession and cultivation, use, or enjoyment thereof, without any evidence of title, shall give to such naked possessor full property, precursive of all other claims in and to 640 acres of land, including his, her, or their improvement."
Nowhere in the statute as it then existed is it provided that such possession should be adverse, nor was the term "adverse possession" used or defined in the statute. However, the courts in construing such statute held that the "peaceable possession" must, of necessity, be adverse to the claim of the true owner, and not held in subordination of his title.
In the case of Redding v. Redding, 15 Tex. 250, 251, Chief Justice Hemphill said:
"There was no possession adverse or otherwise; nor can the aid of the fourteenth section [the above statute] be invoked by the appellees. This bars the right of entry within ten years, but it only applies to cases in which the other party has been in adverse possession."
In the case of Hudson v. Wheeler, 34 Tex. 366, the Supreme Court, having under consideration this statute, quoting the language of Justice Story in the case of Pillow v. Roberts, 13 How. 477, 14 L. Ed. 228, in part says:
"Statutes of limitation are founded on sound policy. * * * The possession which is protected by them must be hostile and adverse to the true owner."
Although the original act did not provide in express language that the possession should be hostile to the true owner, it is to be seen that the statute was so construed by the courts.
In the case of Village Mills Co. v. Houston Oil Co., 186 S.W. 785, recently decided by this court, but not yet officially reported, this court, speaking of "adverse possession," as that term is used in limitation statutes, said: *Page 619
"The decisions and text-books are unanimous in declaring that in determining what constitutes adverse possession that such possession must be: First, actual; second, visible; third, exclusive; fourth, hostile; and, fifth, it must be continued under a claim of right during the time necessary to create the bar. * * *
"`Adverse possession' must be open and notorious possession. In order to make a good claim by adverse holding, the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to raise the presumption of notice to the world that the rights of the true owner are invaded intentionally, and with the purpose to assert claim of title adversely to him, so patent that the owner could not be deceived in the exercise of ordinary prudence over the true situation. The general rule deducible from the various authorities and text-books on the subject is that in determining whether possession is open, visible, and notorious, so as to charge the owner with notice of an adverse claim, the nature, situation, and use of the property are to be considered, as well as the quantity or proportion of the land actually occupied. It is therefore difficult or impossible to specify the acts which will under any and all circumstances and conditions constitute open and visible possession. The authorities seem generally to hold that it is sufficient if the land is appropriated in such a manner as to apprise the community that it is in the possession and enjoyment of the party claiming it."
See, also, 1 Cyc. 999; Texas, etc., Ry. Co. v. Maynard, 51 S.W. 255; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S.W. 1098; Portis v. Hill,3 Tex. 278.
On this subject Mr. Justice Wheeler, in the early case of Portis et al. v. Hill, Administrator, 3 Tex. 279, used the following language:
"What facts will amount to proof of such adverse possession, in each case, is a question of evidence. * * * They must be such as to give the party whose rights are invaded a cause of action. There must be a disseisien. But what will give a cause of action or amount to a disseisin, are often questions of no little difficulty. The difficulty of laying down a precise rule by which to determine what is an adverse possession, has often been felt and acknowledged. `The clearest and most comprehensive definition' (it is said) `of a disseisin and adverse holding, perhaps, is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation, to hold the land against him who was seized.'"
It is therefore the settled law of this state that a claimant under this statute who claims a specific 640 acres, having actual occupation of only a portion thereof, must sufficiently describe the whole tract in his plea to identify it, and must prove his open and adverse possession and claim for ten years of the identical land so described, or must show by pleading and proof that the setting apart to him of such specific tract will not be an inequitable partition of the larger tract of land between himself and his co-owner. If such occupant fails to show that he has held adverse possession of the specific tract claimed by him for ten years, and also fails to show that it would be fair and just to his co-owner to have the specific tract claimed by him set apart to him by the court, he would nevertheless, having otherwise complied with the requisites of the statute, be entitled, under proper pleadings and proof, to have the court designate and set apart to him such 640 acres as the equity and justice of the case required, and, if necessary, the court could appoint commissioners to partition the land for that purpose. Lumber Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S.W. 199.
Under this assignment of error, it will be necessary to examine the evidence to ascertain if there is any testimony legally sufficient to show that the defendants in error and those under whom they claim, and with whom they are in privity, have for a continuous period of ten years (less the period of suspension of the limitation statute) claimed and adversely held 640 acres, while the same or any part thereof was in their possession.
The witness Womack testified by deposition for the plaintiff substantially as follows:
"* * * I was acquainted with the father and mother of Charles Ainsworth. They lived in Hardin county when I first knew them. Lee Ainsworth, the father of Charles H. Ainsworth, followed the business of farming and timbering. As to whether I can state the location of the tract of land upon which Ainsworth lived just after the Confederate War, well, when I first knew him he lived on Pine Island bayou. He then moved up to Village Creek, and afterwards down near Cook's Lake on the Uriah Davidson league, and occupied the place as a tenant of my brother, Frank Womack. This place was about 100 yards or more on the highland west of Cook's Lake. Yes; this place was settled by Obediah Cook before the War, and several other persons occupied it besides Lee Ainsworth and before he moved there. There was a little log dwelling house and about 10 or 15 acres of cleared land they farmed on. They had a peach orchard, cow pen, hog pens, corn cribs, smoke house, and fence on the land. Ainsworth and his family lived on the land twice, first with my brother a year or two, and then after he bought it from Kempner he lived there about four years. * * * Obediah Cook first settled the place before the War, the latter part of 1858 or early part of 1859. He made a crop, and lived there perhaps a year. He cleared a field and improved the place. He sold out to Tom Brady, and moved to Concord. Brady lived there and farmed the place until the War opened. He sold to George Oglesbee and his wife went back to her folks, and Tom went to the army. Oglesbee and his sister lived there from the time Brady went to the War until some time after the War. I went to the War in 1861, and stayed in the army until 1865. I was in Louisiana and Texas during the War. * * * I was at home once on detail duty in 1863. I came back home four or five times. I was stationed at Sabine Pass and in Louisiana, and each time I came home I found Oglesbee living on the land. * * * When I returned in 1865 after the War, he (Oglesbee) was still living there. Oglesbee sold out to Cave Johnson. Cave Johnson moved from Beaumont up there and made a crop. Cave Johnson stayed there a year or two and moved back to Beaumont. He sold to Buck Hooks. Buck Hooks did not live on the land himself, but had a negro tenant by the name of Bob Arline on it. I lived in a mile of the place and south of the Davidson league, and Bob and I cultivated the place and my place together the year Hooks owned it. Buck Hooks sold to my brother, Frank, and Frank lived on the land and cultivated it about three or four years, He had Lee Ainsworth *Page 620 help him and living with him, during the time he owned it. Frank was not married. Ainsworth lived with him part of the time he owned it. My brother, Frank, sold to Ol Gilder. Ol Gilder did not own it but a very short while, about six months, or maybe a year, maybe not so long. He sold it to Joe McClusky, and then Joe continued to live there until he sold to U. M. Gilder. * * * I know about those sales. While I do not know the price or the exact dates, except as heretofore stated, I know that each one of them sold to the person who succeeded him in possession. Yes; I heard them all talk about having sold and bought the land at the time. I know there were sales from one man to another by having heard them discuss the sale and purchase of the land. You ask me the following question: `Isn't it a fact, Mr. Womack, that all the parties you have testified about living on the place on the Davidson league inquired about would just move in and stay awhile and then move out, and that none of them ever set up any claim to 640 acres of land, and that none of them ever had a survey of 640 acres of land or of 160 acres of land made, and that it was further a fact that none of them ever had any survey made at all surrounding the improvements inquired about?' And I answer that they did set up a claim. They all claimed it, and whenever they left they sold the improvements and the claim. I have been on the place in question on Cook's Lake a thousand times where I have stated certain persons lived before and after the Confederate War. There was improvements on the place. There was a little house built by Obediah Cook. In time of the War, when George Oglesbee he was bushwhacking — he did not go in the War, — Dave Chandler went down there and burned George Oglesbee's house. That was about the close of the War, but I helped Oglesbee raise another house; me and old George Simpson. There was about 15 acres of cleared land, and it was worth about $10 an acre to clear and put in cultivation and the house, of course, was worth $50 or more to build. This place was worth about as much as the average settlement in those days; in fact, it was a little better than the average place in those days. I have been a farmer all my life. * * * I came to Jefferson county in 1856 and was 13 years old, and lived in Beaumont, * * * and moved to Concord in 1857 or 1858. Concord is about three miles from Cook's Lake and the place where I have testified about. * * * For the past fifty years I have never lived over two miles from the Uriah Davidson league of land in Hardin county. * * * The Ainsworth family never lived on but one place on the Uriah Davidson league, and that was the place settled by Cook, and they lived there, as I have stated, first as tenants of my brother for a year or so, and after he bought from Kempner he lived there three or four years. I cannot tell the day, month, or year any of the men moved on or off of the Uriah Davidson league, any nearer than I have stated before. They generally moved right out and the succeeding one right in; hut at the most only a month or two elapsed. The land was never vacant from the time Obediah Cook settled it until Ainsworth moved off in the 80's when he came to Beaumont, more than one or two months at a time, and it was cultivated every year; and the improvements, the houses, fences, pens, etc., remained on there all the time, except when Oglesbee's house was burned down about the close of the War, and he remained on the land, and built another house, and I helped him raise this house, me and Simpson. * * * As to whether `it is a fact that all the parties I have testified about living on the place on the Davidson league inquired about would just move in and stay awhile and then moved out, and that none of them set up any claim to 640 acres of land and that none of them ever had a survey of 640 acres of land or of 160 acres of land made, and that it is a further fact that none of them has had any survey made at all surrounding the improvements inquired about,' well, they did set up a claim; they all claimed it. I have told you how long each one stayed there as near as I can heretofore, and if any of them ever surveyed the land I do not know anything about it."
This witness was brought into court before the trial was concluded, and was put on the stand by the defendants in error, and testified personally, and more in detail as to the occupancy of the persons who lived on the land, and in other respects modified his testimony to a considerable degree relative to the claim of Tom Brady and Obediah Cook to the land in question. This testimony is as follows:
"In 1858 old man Cook went down there and settled on what is called Cook's lake; that is how this lake took its name. That was some time in 1858. Mr. Cook was on the land one year, about a year. He left there the latter part of 1859. You ask me if I know anything about the occupancy of Obediah Cook relative to the length of time he occupied it, and character of occupancy, and I answer that he went down there and cleared up a little field and built a house and lived there about a year, and then he moved out to Concord. After Mr. Cook moved off this land, Tom Brady moved on the same tract of land. Tom Brady bought Cook out and moved down there. Mr. Brady moved there and made one crop. I think he was there in 1860, and in 1861 Brady left there and went off in the army. After Brady moved off he sold to George Oglesbee, but I don't know just what he sold. I only know just from hearing them say they sold to one another is all I know about it. * * * I don't know how much land Tom Brady claimed nor do I know how much land Cook claimed, and don't know anything about it, as I never heard them say. I have stated that when Tom Brady moved off he sold to Oglesbee. Oglesbee stayed on the land all the time until the War until after the War broke up. He stayed on it four or five years, Oglesbee did. During those four or five years I don't know what he done, whether he claimed any specific tract of land. He might have claimed the whole swamp. He was laying out in the woods the five years he was there. He lived over in there, and he stayed in the swamps, and that was all the time of the War. I don't know just how much he was claiming. That was George Oglesbee. Oglesbee sold out to Cave Johnson, but I don't know what amount of land that Johnson claimed. They always sold the place, Cook's place and improvements, it was known as Cooks place. I don't know how much land was sold. I know who followed Johnson. Johnson sold to Buck Hooks, but I don't know what Hooks claimed on this land. I had a relative on this tract of land. He comes in after Hooks. I don't know what Hooks claimed, but he sold out to my brother, Frank Womack, hut it is too hard for me to say what Frank Womack claimed, for I don't remember. You ask me if I was ever on this tract of land and on this place with my brother at any time, and I say I was over there some times, passing there off and on, as I lived within a mile of it. I know how much Ollie Gilder claimed there. He claimed 640 acres of land. Joe McClusky claimed 640 acres. All of them after that claimed 640 acres of land. Oglesbee was on this land about four or five years, and he was on this land all the time during this four or five years, so far as I know. * * * I do not attempt to fix any of the dates of those other transactions except Cook's. I know the different transactions and how long they stayed, but I was not concerned in it. It was between *Page 621 forty or fifty years ago, and I did not think anything about it. * * * Tom Brady came in there that winter of 1859, and made a crop in 1860. When I say a man will go on the land and make a crop I mean by that he would go there in the spring or winter and make a crop the next spring and summer and gather it in the fall. When we talk about a man making a crop he generally lives on the land a year. I am satisfied from my knowledge of the time I and my father went there how long them two men lived there. I know positively that Cook was there in 1859 and Tom Brady went there in the winter, because I know how long they stayed. I have got something to fix my memory by. I know that Tom Brady moved out when the War opened. Tom moved out and went into the army and carried his wife to old man Henry Linnie's and left her there. He had not been married long when the War opened. When the War opened I don't know whether Tom joined Capt. Ross' company or not, but he went to Virginia in the first company that was raised. The War opened in the early part of 1861. Tom's crop was made in 1860, because he left in 1861. He could not have made a crop that year. I went to War in September, 1861, with a company that was made up at Sabine Pass. * * * My brother sold the place to Oliver Gilder, but Gilder did not live there. Gilder did not own it but a short time when Joe McClusky bought it. Now as to whether from the above time my brother sold it to Ol Gilder and Ol Gilder sold it to McClusky for about a month the place was probably vacant. After McClusky came there, as near as I can recall, he lived there on the place two or three years, and he then sold the place to Mitch Gilder. Joe stayed there and made a crop there. Mitch Gilder sold the place to Kempner. I don't think Kempner ever made any crop on it, because when Kempner bought it in the fall Lee Ainsworth still lived on it. He was working in the swamp, and he had Lee Ainsworth and Kempner both hired. Lee Ainsworth bought the place from Kempner and stayed there until he moved off to Beaumont.
"I have lived in Hardin county ever since 1858.
"The land was occupied continuously since it was settled by Cook up to the time Ainsworth moved off in the 80's."
J. H. Brady testified in substance:
"I was born March, 1866, and have known the land since I was ten years old. During all that time the land was improved and cultivated every year."
George Simpson testified:
"I am 77 years old, reside about two miles north of the town of Kountze, and have been in Hardin county since the early summer of 1865. I am acquainted with the location of the Uriah Davidson league of land in Hardin county, and Cook's Lake is located near the south line of the Uriah Davidson league. I am acquainted with the old improvements situated on the Uriah Davidson league, and they are located, to the best of my recollection, about 200 or 300 yards west of Cook's Lake, near the south line of the league. I have been acquainted with said improvements and field ever since the summer of 1865. I was acquainted with Tom Brady, George Oglesbee, Eliza Oglesbee, Cave Johnson, Buck Hooks, Frank Womack, Joseph McClusky, U. M. Gilder, and Lee Ainsworth. None of the above parties were related to me. I know that the Oglesbee family lived on and cultivated the land for some length of time, but don't know just how long. The rest of the parties I mentioned lived on and cultivated this land, but I don't remember just when or how long. Some of the parties I mentioned claimed this land as their own and some of them were claiming under a deed from Buck Hooks. I don't remember how the transfers were handed down. I only know of Buck Hook's deal. I wrote that deed myself, and I think that transfer was made either to Cave Johnson or to Frank Womack. The first time I knew this land was when the Oglesbee family was living on it in 1865. They continued to live on this land for some time, but I don't know just how long, some years, I don't remember who succeeded the Oglesbee family."
Elizabeth Oglesbee testified as follows:
"I am 73 years of age. * * * I knew George Oglesbee. He was my brother. He is dead. I knew Tom Brady. He was not related to me. I know where the Davidson league is located. I know a body of water in Hardin county known as Cook's Lake, situated near the south line of the Davidson league. I know where the improvements are that you say is on the ground on a part of the Davidson league lying immediately west of Cook's Lake, being evidence of an old field and other improvements which are claimed by the plaintiffs to have been made prior to the Civil War, and occupied by various persons under and through whom plaintiffs claim title to the land. They are about 300 yards west of Cook's Lake. George Oglesbee claimed the land and occupied and cultivated it. He occupied and cultivated the land from the time Tom Brady moved off the land until after the War, and Cave Johnson moved on the land. I know Tom Brady. The first person I know of who occupied the land west of Cook's Lake and on the Uriah Davidson league was Tom Brady. Tom was living there when we moved on the place. George Oglesbee bought the land from Tom Brady. My brother cultivated the land all the time he owned it. I don't know how many acres he cultivated, but it was a good big field. This was cultivated from the time he bought the place from Tom Brady in 1861 until after the Civil War."
Neal McClusky testified;
"My name is Neal McClusky. I am 64 years years old, and live in Hardin county. I came to Texas from Louisiana at the end of the War and settled in Hardin county; have lived there ever since. * * * When I came to Texas, George and Eliza Oglesbee was living near Cook's Lake on the west side of the land mentioned. I don't know how long the Oglesbees lived on the land. They were living there when I came to Texas. Cave Johnson lived on the land two or three years. Can't say exactly how long. I don't know how long he [Buck Hooks] claimed the land, but he had some one on it who made a crop or two. I knew Frank Womack. He lived on this land about three years. I knew Ollie Gilder claimed the land and had a tenant on it, but don't know how long. My brother, Joe McClusky, lived on the land after Ollie Gilder sold it, and occupied and cultivated about 20 acres. Joe went on the land about 1873 or 1874, and I lived with him. I think he moved off the land a little while and then went back and lived there until he sold to Mitch Gilder. * * * I know Buck Hooks claimed 640 acres of the land, and that included the house testified about. I say the parties claimed the land because they lived in the neighborhood and each one claimed the property when he lived on it as his home. I know Joe claimed the land because 1 lived on it with him seven or eight years."
Joe Bumstead testified:
"I am 64 years old; was born and raised in Hardin county. I know where Cook's Lake is in Hardin county. I know where the Cook's place and improvements are west of Cook's Lake, and have known it all my life, ever since I was a little boy. I know all the parties you ask about, Obediah Cook, Tom Brady, George Oglesbee, Eliza Oglesbee, Joe McClusky, U. M. Gilder, J. S. Kempner, Lee Ainsworth. * * * Obediah Cook lived on the land when I was a *Page 622 little boy. Tom Brady lived there before the War. George Oglesbee lived there all during the War. Joe McClusky lived there longer than anybody else. He lived on it about seven years, and then sold it to Mitch Gilder, who stayed there several months and then sold to Kempner, and Kempner made a crop and lived there until he sold to Lee Ainsworth. Ainsworth lived there about four years, and then rented it to Morris, who lived there two or three years after Ainsworth moved off. All the people who lived there claimed to own the place, except Bob Arlins, who farmed it for Buck Hooks, and me and my wife, who lived on it for Cave Johnson. The land was never vacant from the time I can first remember, which was before the War, until after Morris moved off, some time in the 80's, when he quit farming it for Lee Ainsworth. Somebody lived on it every year and made a crop. The improvements were there until some time in the 80's, just after the War, somebody burned the house down while Oglesbee lived there, but he built it up again right straight."
Mary Bumstead testified:
"I am 62 years old. I know the improvements and the field on the old south line since about 1868. Do not know Cook, but did know Tom Brady, George Oglesbee, Ollie Gilder, Eliza Oglesbee, Cave Johnson, Buck Hooks, Frank Womack, Joe McClusky, U. M. Gilder, J. S. Kempner, and Lee Ainsworth. Cave Johnson was my father. * * * The first one I knew lived on the land was Oglesbee. My father bought from him, and lived there about three years. He sold to Buck Hooks, and I and my husband lived there and cultivated the land. Buck then put a negro on the land. After that Frank Womack lived on the place. * * * Joe McClusky, Ainsworth, and Morris all lived on the place. * * * The place was occupied all the time from the time my father bought it from Oglesbee until the time Lee Ainsworth moved off some time in the 80's. I know that George Oglesbee claimed to own 640 acres of the Uriah Davidson league, because my father bought it from him. Buck owned 640 acres, because my father sold it to him."
A careful scrutiny and a close analysis of all the evidence of these witnesses wholly fails to show what improvement (other than a little house built by Cook and a little field cleared by him) either Cook or Brady had on the land, how much of a field was cleared, how much of the land was in cultivation, or that either claimed, cultivated, enjoyed, or occupied any other land than that actually improved. There is not a single circumstance in the record showing any acts incident to an appropriation by them of 640 acres. Some of the witnesses say that when Oglesbee's house was burned down, during the later years of the War, there was then only 10 or 15 acres in actual use and cultivation.
To constitute adverse possession in Cook and Brady to 640 acres, the evidence ought to be of a character sufficiently certain and definite in its nature to impress the belief upon the owner of the fee, as well as all others who might have had knowledge of the occupancy of the land by Cook and Brady, that it was their purpose and intention to hold adversely 640 acres thereof.
Adverse possession, accompanied with use, does not solely rest, it is quite true, upon the claim asserted by word of mouth. The right, as asserted, may arise from circumstances connected with the use and possession of the property. Converse v. Ringer, 6 Tex. Civ. App. 51,24 S.W. 705.
In the case of Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S.W. 55, the Court of Civil Appeals on this subject said:
"It is not believed that the burden is more onerous upon one claiming a right by prescription than would be the case where he asserted a right to real property under the ten-year statute of limitation. In both cases it must be shown that he is asserting the right adversely to the true owner. But it has never been held that in asserting the right under the statutes of limitation it was necessary for the one in possession to show that he openly, by word of mouth, asserted a right to the property, and that he was holding adversely to the true owner; but upon the contrary, these facts may be established by the character of the use of the property, and the circumstances connected with the possession. And if, from a consideration thereof, they are sufficient to indicate that the purpose was to claim the right and to assert an adverse use, they should be given that effect, although the possessor or user had not openly declared that such was his purpose or character of claim. Now, it is true in this case that it was not shown that the public or the plaintiffs openly asserted an adverse claim to the road in question, * * * but there are facts in the record which indicate that the public have used that road for a length of time and in a manner which would authorize the issue to be submitted to the jury whether the use was of a character indicating a purpose to establish a road over the land of the owner adversely to his rights."
As hereinbefore stated, we are left entirely in the dark as to the nature and character of the use, possession, and claim of both Cook and Brady.
In their brief defendants in error, by use of the following language, concede the correctness of my deduction in this matter, for they contend:
"The testimony as to each and all of them except Cook and Brady was that they claimed 640 acres, and under the law the possession of Cook and Brady extended to 640 acres."
The burden of proving title to the land by limitation rested upon the defendants in error. Every essential element of the statute, including the continuity and adverse possession of the various occupants of the land, must be supported by the evidence. Neither the court nor the jury is authorized to indulge in presumption as to the character of claim, possession, or use of the land by Cook and Brady, with whom it is necessary for defendants in error to link in perfecting the tenyear statute of limitation.
The court in its main charge to the jury instructed them, among other things, as follows:
"But in this connection [referring to the tenyear statute of limitation] you are charged that the statute of limitation was suspended by law during the period of time from the 28th of January, 1861, to the 30th day of March. 1870, which period covered nine years, two months, and three days; and therefore, in order to entitle a person claiming under the ten-year statute of limitation, as it existed prior to September 21, 1879, such person must have entered into the possession of the land at least nineteen years, *Page 623 two months, and three days prior to September 21, 1879."
There is no objection to this portion of the court's charge. On a basis of the dates therein stated it was necessary for the defendants in error and those under whom they claim, and with whom they are in privity, to have commenced the adverse possession of, and laid claim to, 640 acres of the land out of said league, not later than July 19, 1860. It was consequently necessary to conclude the claim and possession of Cook and Brady, or, if not both, then at least that of Brady, to make out and complete the full ten years' adverse possession.
The only evidence of an assertion of hostile claim, either positive or by acts indicative of appropriation, to 640 acres of land, so far as the record shows, commences with the possession of Oglesbee. Oglesbee did not go into possession of the land until in the fall or winter of 1861. The evidence is not, therefore, sufficient to support the verdict, in that it does not show, either by positive evidence or by acts or circumstances upon the part of Cook and Brady, that they or either of them claimed or adversely held 640 acres of land, and therefore, in my opinion, said assignment of error should be sustained.