On June 17, 1889, the Federal Government patented to Charles H. Little one hundred and forty-seven acres of land located in Marion County, Florida. The patentee built a home, cleared a considerable portion of the tract, where he resided for years and raised several children. The children, except one, left the community in which the homestead was situated prior to the patentee's death in 1926, which occurred at the home of his son about one mile from the homestead.

Charles H. Little conveyed one acre of land, adjacent to but of a different tract, to Ed Kendrick, who built a home thereon and moved his family but cultivated annually as a tenant of Charles H. Little a portion of the tract here involved. He continued to cultivate the land, or portions thereof after the death of Little. Shortly prior to the institution of the suit at bar, the defendant below undertook to build or construct a home on the described tract, when protests occurred terminating in the institution of the present suit.

The heirs of Charles H. Little, in the course of the trial, introduced into evidence the aforesaid patent and established the heirs of Charles H. Little. The defendant below, under a plea of not guilty, introduced testimony to show that he had been in possession of the property for a period of seven years and under appropriate instructions by the trial court the jury rendered a verdict for the defendant below. A motion for a new trial raised the question of the legal sufficiency of the evidence to sustain the verdict, which was denied and a judgment entered thereon for the defendant below.

I have diligently studied the record and fail to find evidence to support the verdict. It was the legal duty of Ed. Kendrick, as the admitted tenant of Charles H. Little, by act *Page 723 or deed to disavow, disclaim and positively repudiate the relation of landlord and tenant under which he enjoyed the possession of said land which continued after the death of the owner. The law requires an act or deed made clear by positive disavowal and disclaimer of the relation of landlord and tenant, thereby placing the landlord or his heirs on notice that such relationship no longer existed, and when given, as stated supra, adverse possession recognized by the statutes begins. See Wilkins v. Pensacola City Co., 36 Fla. 36,18 So. 20, 26; Armstrong v. Wilcox, 57 Fla. 30, 49 So. 41, 131 Am. St. Rep. 1080; Chicago Trust Co., v. Knabb, 142 Fla. 767,196 So. 200-204; Kilvert v. Clark, 152 Fla. 795, 10 So. 2d 795.

Counsel for appellee points out that one of the heirs lived in the community where the homestead was located and the possession of the defendant below was open, adverse, visible, hostile, and so notorious as to legally impute notice or knowledge of his right to an heir of Charles H. Little. It was the legal duty by act or deed on the part of defendant below by clear and positive action to disavow and repudiate the relation of landlord and tenant under which he entered the possession of the property and bring this fact to the knowledge of the heirs before the statute of adverse possession begins to run against the heirs and this is not shown by the testimony. It is my view that the motion for a new trial should have for this reason been sustained. I therefore agree to the conclusion expressed in the opinion prepared by Mr. Justice Adams.