40 Ark.] NOVEMBER TERM, 1882. 113 Wheeler et al v. Ladd et al. executors of Foster. The latter had none beyond this third part, and although there is oral proof that he had bought the interests of Chapman's heirs in his lifetime, that must be disregarded, under the statute of frauds. At law, title to real estate can only be shown by written instrument, or oral proof of descent, or seven years possession, to which may be added, in equity, oral contracts with part performance, and other cases of implied trusts. After the death of Wheeler's widow, the date of which is uncertain, but which was certainly before 1870, Foster took possession of the whole tract, and from that time On, till his death, claimed it as his own. The adverse nature of his possession is clearly shown by evidence. The ' oral proof, whilst incompetent to show any title in him, may explain his motives. He repudiated the title and right of the Wheelers, and desired to fortify his possession under the Chapmans. This adverse possession may connect with the possession of his executors, and of purchasers from them, and in 1880 having ripened into a title, showed a better right in defendant than the prima facie right of plaintiff's. But not as to all of them. Four of Wheeler's children were minors, within three years before, or at the time of beginning the suit. Another was covert, when 4.Eject-ment: Foster first took possession. As to these, they Recovery by part of are not affected in any way by the statute of plaintiffs. limitations. Their disabilities protect them entirely, and they may stand upon their prima facie right for their proportionate shares of the property which came to them by descent, with colour of title. The title of defendant by adverse possession could not, as to them, become a "better title" until their disabilities were removed, so that it might operate against them. Under the evidence as presented by this trans- 40 Ark.-8
114 SUPREME COURT OF ARKANSAS, [40 Ark. eript the jury should have found for the minors and the feme covert, who were, or had been so, up to within three years for their respective parts, with proportionate damages. It is not important to consider of objections to instructions. The court properly refused to give one asked by plaintiffs on the hypothesis, that Wheeler and Foster were tenants in common. They were not As for the rest, the instructions were mainly fair, and stated the law, except that they were calculated to make the impression that the seven year's possession of defendants would defeat the prima facie right of the plaintiffs under disabilities. In so far they were erroneous. The widow of Foster, and Crow, a claimant of a small portion of the land, were made defendants, and did not answer. They will be amenable to the final judgment if their claims conflict with the right of any of the plaintiffs, who may recover for a proportionate part of the portion of the tract which Wheeler reserved in his conveyance to Foster, and which seems to have been considered by them as two-thirds in value of the whole. For error in overruling the motion for a new trial reverse the judgment, and remand with usual directions.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.