delivered the opinion of the court.

The evidence of the defendant should not have been excluded. It should have been left to the jury to say whether upon all the evidence the plaintiff was entitled to recover anything, and we have no hesitation to say that a verdict for the defendant would have been sustained. In 1873, the father of the plaintiff, having a large quantity of land, it appears, authorized him to settle upon the western part of section 20, the land with respect to which this suit arose, telling him to occupy and pay taxes; that he would not convey it to him then, but at an indefinite future date, and on a certain contingency (which might or might not occur), he would convey it to him. The son proceeded under this mere license to occupy the land, and continued on it, and annually paid the taxes on it, but it was all the time assessed to the father, and paid on as part of his, one receipt for all being given in the name of the father. In 1882 the father united with other land owners in that part of the county in granting the right of way over all their lands for the construction of a railroad. This grant ivas general over all lands owned by the grantors in Wilkinson county, and was to be void, if the road should not be built in eighteen months. The road was not completed in time, but a survey was made and a location, and grading and constructing went on, and the road was completed in the summer of 1884. It was built on the western part of section 20, which all this time was occupied by the plaintiff, and no objection was ever heard from him, nor any claim that he should be consulted *230or compensated or in any way treated as owner. This particular land is part of a much larger tract.of the father. The legal title was in him. All was assessed to him and paid on in his name as one property. In 1885, he (the father) sued the railroad company for trespass on his land, including section 20, and recovered for damage to part of the land other than this section in October, 1886. About this time there was a proceeding for condemnation of the right of way over the lands of the elder Day, and a compromise was agreed on between him and the railway company by which he was to be paid $800, and it was paid him, and on 21st day of January, 1887, he made a conveyance to the company of the right of way across certain of his lands and among them over and across section 20, and of the right “ to fell any timber beyond the right of way . . . which is sufficiently near the track of said road to fall on and obstruct the same.” In virtue of this purchased right, the company caused the over-hanging trees to be cut down.

During the litigation between his father and the company, ended as aforesaid, the plaintiff in this action, who was cognizant of it, asserted no claim ,of any sort against the company, but in the eárly part of 1889, when it appeared that his father had got through with the company and got out of it all he could, instituted this action, and now claims the land by “a verbal deed,” as he calls it, in 1873, and his continued occupancy since, and a conveyance by his father, he says, in 1886, of this land. This conveyance was not produced, and he testifies doubtfully about it. It is not claimed to have been recorded. It is not denied that during all the years of building the road, and litigating with his father, he was silent as became him in his position of a mere licensee of the land in whose favor no statute of limitations ran; and it would be simply insufferable to permit him, under the circumstances shown by this record, to be treated as owner of the land, and entitled to recover the damages he seeks. He was certainly not owner until it was conveyed to him in 1886, and if it was then conveyed to him, and the deed pocketed, he could not be treated as owner as against the defendant, and if his conveyance was recorded when the company pur*231chased of his father, January 21, 1887, a grave question would arise as to its efficacy under the history of the case.

. Counsel for the appellee asks to be permitted to remit so much of the judgment as will satisfy us, and cause judgment here for what we regard as the proper sum; but in our view a new trial should be had, for if the record shows the facts of the case, we think no recovery should be had, and if the truth of the case entitles the appellee to a recovery of all or any part of his demand, we have no desire to hinder him. We deal with the case as presented by the record only, and know nothing and care nothing about it, except that the law shall be properly applied to the facts of the case.

Reversed and* remanded.