194 F. 366 | 8th Cir. | 1912
This was an action in ejectment, instituted by defendant in error to recover possession of a tract of land in Logan county, Colo. After issue was joined, a jury was duly waived, and the cause tried to the court. Evidence was heard, and after plaintiff rested the defendants moved for a judgment in their favor. This motion was denied, and exceptions were duly saved. Defendants, instead of resting their case and standing on their motion, proceeded to introduce evidence in their own behalf of a contradictory character to that offered by plaintiff; but no further or additional motion
‘‘And thereupon the Plaintiff rested its case’.’ (in rebuttal). “And the above and foregoing is all the evidence given, offered, or received upon the trial of said cause. And thereupon, and on the same day, the court, being fully, advised in the premises, renders judgment in favor of the plaintiff and against the defendants for possession of said property and for costs. To which judgment of the court, and to the entry thereof, the defendants, by their counsel, separately, then and there' duly excepted, and an exception is allowed, and sixty (60) days from this day is allowed within which to tender bill of exceptions.”
The assignment of errors is as follows:
I. “That the court erred in not granting a nonsuit in above-named case at the close of plaintiff’s evidence, inasmuch as the plaintiff had not shown immediate right of possession to said premises.'’
IX. “The court erred in not giving judgment for the defendants, on the ground and for the reason that an action in ejectment and for possession is a possessory action, and no right of possession follows from the proving or establishing of a title.”
III. “The court erred in holding that the plaintiff had not waived the default alleged, proved, and under which plaintiff attempted to rescind a contract of sale from plaintiff to defendants herein.”
IT. “The court erred In holding that the defendants had not the equitable right of paying the money into court, or 1o the plaintiff herein, for each and every amount due plaintiff under contract of sale, and retain possession of the land.”
V. “The court erred in holding that a default, once acquiesced in, could be used for a forfeiture of contract, without personal notice to the parties in default under such waiver.”
VX. “The court erred in holding, in substance, that the plaintiff was not required to pursue its remedy by strict common-law foreclosure of the premises involved, including the right of redemption.”
YIX. “The court erred in holding that defendants did not have right of redemption under (lie law, facts, and evidence of this cause, and the right to pay np all defaults and remain in possession of the land.”
VIII. “That the verdict, findings, and judgment order and decree were against the law.”
IX. “That the verdict, findings, and judgment order and decree were against the evidence.”
X. “That the verdict, findings, and judgment order and decree were against both the law and the evidence.”
The judgment must be affirmed.