176 P. 259 | Nev. | 1918
By the Court,
This is an action in claim and delivery. For convenience the parties will be referred to here as they actually stood in the court below.
Allen Clark Company, the plaintiff, alleges in its complaint that it is the owner and entitled to the possession of an oil painting, four by eight feet in size, situate in a certain saloon in the city of Reno, known as the “Wine House”; that the defendant, Spiro Francovich, wrongfully detains from plaintiff the possession of said property; that the alleged cause of the detention is that parties other than the defendant claim some interest therein; that its value is $400, and judgment is demanded for its possession or its value.
Ray J. Cool, A. E. Hammond, George J. Clark, and Edith G. Clark, before the trial of the cause, by court order were permitted to intervene in the action. Their complaint in intervention alleges that neither the plaintiff nor the defendant are entitled to the ownership or possession of the painting; that prior to the 26th day of February, 1917, the estate of A. J. Clark, deceased, was the owner and entitled to the possession of the painting; that said estate had not been fully closed, and that all the property of said estate had not been fully
The defendant, Spiro Francovich, by his answer to these complaints, admits his possession of the painting, but disclaims any interest therein other than that set up by way of counter-claim, in substance and to the effect, that with the consent and permission of a prior administrator of said estate, on March 27, 1915, he took possession of the painting for the purpose of preserving the same; that he is entitled to judgment for the sum of $124 for the care and preservation of the painting in his possession.
For reply to the complaint in intervention the plaintiff set up that Allen L. Clark, by a deed dated the 29th of November, 1916, for a valuable consideration, sold and conveyed to plaintiff his interest in all the property, real and personal, both in law and in equity and inheritance, of the estate of A. J. Clark, deceased, together with the property in controversy; that the interveners, by deed dated the 23d of December, 1916, conveyed all of their right, title and interest in and to the painting to plaintiff’s predecessors in interest, Roy J. Frisch and C. E. Mack, and by a mesne conveyance, dated the 1st of February, 1917, it became the owner of the painting and entitled to its possession.
The plaintiff demurred to the answer of Francovich upon the ground that it did not state a defense. The
The entire record is certified here in the form of a bill of exceptions, together with seventeen pages of assignments of error.
For a clearer understanding of the conclusions reached it will be necessary, at the expense of prolixity, to analyze the facts of the case.
A. J. Clark died intestate in October, 1913, seized and possessed of a large amount of real and personal property, situate in Washoe County, of the appraised value of nearly $200,000, leaving as his heirs at law the interveners in this action and one Allen L. Clark. On the 29th day of November, 191&, the estate had proceeded to the point of a final decree of distribution, distributing to each heir his or her proportionate part of the estate. The painting in question, however, was not included in the inventory and appraisal of the property of the deceased as an asset of said estate. Neither is it mentioned or referred to in the decree of distribution, or' in any subsequent proceedings, unless it may be said to be affected by that particular clause of the decree which provides: “And any other property not now known or discovered which may belong to said estate, or in which said estate may have an interest, shall be distributed to the heirs in the same proportion.” Subsequent to the entry of said decree of distribution, it appears that Allen L. Clark conveyed all of his interest
On the 1st of February, 1917, the said grantees conveyed the Clarendon Hotel property to the plaintiff corporation, together with “all of the personal property, consisting of furniture, bar fixtures, and all other personal property in the buildings on the above-described lots that belong to or are owned by the parties of the first part.” The plaintiff company introduced in evidence the latter deeds for the purpose of showing its ownership and right to the possession of the painting-in question, it being its contention that the granting clause of these two instruments carried the painting. It is manifest from the sweeping clauses of these conveyances that it was necessary to resort to evidence aliunde to support the contention. Testimony was offered and admitted to prove that at the time of the execution of the conveyance by the interveners to Frisch and Mack of their undivided interest in the Clarendon
Because of the unusual language, “now hold” and “now have,” employed in the granting clause quoted,
It is argued that, as the plaintiff company joined with Clark in the deed to interveners, whatever interest it may have acquired in the painting by the deed of November 29, 1916, passed to the interveners. The weakness of this position is. that it affirmatively appears that the plaintiff company did not convey, or purport to convey, by this instrument, any property of any description whatever. By this deed the plaintiff company for the same consideration released the interveners, Boy J. Frisch and C. E. Mack, from the covenants of warranty contained in the respective conveyances hereinabove discussed.
It being conceded that the interveners had a three-fourths interest in the estate of A. J. Clark, deceased, and that Allen L. Clark had the remaining one-fourth, we are of the opinion that a one-fourth interest in the painting is in the plaintiff corporation, and the remaining three-fourths in the interveners.
The judgment adjudging the interveners to be the
The order appealed from vacating the judgment for costs against the defendant, Spiro Francovich, is affirmed.