Opinion of the court by
Affirming.
The appellants instituted this action to recover of the appellees a boundary of land situated in Edmonson county, Ky., alleging themselves to be the owners and entitled to the possession of it, and that appellees were in possession, and wrongfully withholding it from them. Appellees denied the title to appellants, and pleaded title in themselves by adverse possession. Upon the trial of the case appellants introduced in evidence deeds and oral testimony, which in our *404opinion, established a prima facie title in them, from the Commonwealth of Kentucky, to the land in question. At the close of appellants’ evidence the appellees moved the court for a peremptory instruction to the jury to find for them as in case of nonsuit. This motion was evidently based upon some objection to one or more of. the deeds constituting appellants’ title, but the record does not show definitely which deed, or the objection thereto. The court declined to rule upon the motion until the close of the testimony, whereupon appellees (who were the defendants below) themselves testified, and, also John Hester, George Sanders, Ples Priddy, Harding Sanders, John Sanders, and Thomas S, Sanders, that the appellees, and those under whom they claimed, had been in the actual, continuous, and adverse possession of the land in controversy, residing upon and claiming it as their own to a well defined marked boundary, against all the world, for more than fifteen years next before the institution of this action. After the introduction of this evidence the court sustained appellees’ motion for a peremptory instruction. Of this action on the part of the court appellants are complaining.
Having reached the conclusion that appellants, by their evidence, made out a prima facie title from the Commonwealth of Kentucky to the land in question, it only remains to decide whether or not the court erred in giving the peremptory instruction in favor of appellees at the close of all the testimony in. the case. It may be conceded that appellants were entitled to a verdict in their favor, unless appellants made out a sufficient title by adverse possession. This they undertook to do by introducing some eight witnesses, who, without contradiction, testified to facts which showed that appellees had title to the land by adverse possession. No effort was made by appellants to disprove this testimony, *405or to in any way call in question the credibility of the witnesses.
It would have perhaps been more regular for the court to have submitted the question of appellees’ title by possession to the jury, based upon their belief in the truth of the evidence; but where, as in thisl case, the evidence is all one way upon a given question, and the number of witnesses so great as to preclude the suggestion of either of the falsity of the testimony or mistake on the part of the witnesses, the error of the court in assuming the truth of the testimony and giving an instruction based thereon, if error at all, is not Of sufficient magnitude or importance to warrant a reversal of the case based thereon.
In the case of Turpin’s Heirs v. McKee’s Ex’rs, 7 Dana, 301, upon a question similar in principle to that in hand, this court said: “Although, therefore, the instruction would have been more formally .correct if it had submitted the assumed facts hypothetically to the jury, and based the conclusion upon their being found true by the jury; yet, as the facts were clearly proven, and there was no countervailing testimony, the plaintiffs were not prejudiced by the assumption of the facts on the part of the court.” In the case, of Chiles v. Boothe et al., 3 Dana, 566, it is said: “There are many cases in which the court may instruct ithe jury, upon the whole evidence, to find for one or the other party; and, although such a practice is not to be encouraged, yet when a verdict found under such instruction is conformable to law, the evidence, and justice of the, case, it is rarely disturbed. The instruction in tbe present case, considering the state of the evidence, was equivalent to a general instruction to find for the defendant, and there being no contrariety of evidence with regard to the nature and effect of the arrangement between Allen and Chiles, which is in fact the deci*406sive, if not the single, question upon which the whole controversy depends, this was a case, if there is any such, in which the court had a right to pronounce at once the conclusion of law upon the evidence in the-form of the peremptory instruction.” And in the case of Evans’ Adm’r v. Spillman, 6 B. Mon., 334, the rule on this question was thus announced. “The jury then, having been bound to find the facts on which the efficacy of the five years adverse possession by the defendant depended,, the assumption of those facts by the court, or the failure to submit them to t|he jury, does not constitute such an error in the instruction, nor so affect the verdict found under it, as to furnish ground for a new trial.” In the case at bar, the testimony for appellees on the question of their title by adverse possession, considering the number and evident credibility of the witnesses, having been so overwhelming, and there being no countervailing evidence whatever on this point, the jury were bound to have found this crucial question in their favor; and, this being true, we think the court did not err in giving the peremptory instruction.
Wherefore the judgment is affirmed.