LEVY, J. (after stating the facts as above).
The evidence, as seen, is conflicting as to adverse possession of the land and as to payment of taxes. The witness Gunn says he bought the land from George W. Liddell and had exclusive possession and management and paid all taxes from March 8, 1905, to February 15, 1910, being about 20 days less than 5 years. But George W. Liddell denies that Frank Gunn was ever in actual possession of the place, or that the conveyance to him was intended to operate as a deed, and that Gunn paid the taxes thereon. And this same witness denies that he, either before the conveyance by him to Gunn or after the reconveyance to him by Gunn, ever had or exercised adverse possession or use of the land against the plaintiffs, but, on the contrary, expressly recognized their interest in the land. The giving of crop mortgages on the land is not necessarily conclusive of adverse possession. It is therefore believed that the court could not, as a matter of law, say that the defendant had title by adverse possession under either the 5 or 10 years' statute of limitation.
The assignment of error complaining of the peremptory instructions is sustained, and the judgment is reversed and the cause is remanded.