199 P. 685 | Mont. | 1921
prepared the opinion for the court.
Appeals by defendant from a judgment entered in favor of plaintiff and from an order of the court overruling defendant’s motion for a new trial.
The action is in ejectment. The complaint contains the usual allegations in such actions. In his answer the defendant admits the corporate capacity of the plaintiff and puts in issue all the other material averments of the complaint and alleges as a first separate and specific defense that the plaintiff is not the real party in interest, and as a second separate and specific defense defendant alleges title in himself to the lands in dispute by possession and adverse use for more than ten years prior to the commencement of the action.
When the case was called for trial there was some discussion between the parties as to whether a jury was required, but they failed to agree upon the statement of facts, and the court directed that a jury be called. The defendant then admitted that the record title to the land in dispute was in the plaintiff, and that defendant was in possession of the land. Thereupon plaintiff rested, and evidence was introduced by defendant, and rebuttal evidence by plaintiff. At the close of the testimony “the court proceeded to settle the interrogatories to be submitted to the jury,. and announced that the court would submit the following.” Then follows the two interrogatories submitted. The defendant then requested the court to submit to the jury two questions proposed by him. The request of the defendant was refused, and he excepted to the action of
The appellant claims that the court erred (1) in setting aside the findings made by jury; (2) in adopting the findings proposed by plaintiff; (3) in denying defendant’s request to submit the two additional interrogatories to the jury; (4) in rejecting and refusing to adopt the findings proposed by the defendant; (5) in making and giving the judgment entered herein; (6) in overruling defendant’s motion for a new trial.
The land in dispute consists of a triangular tract containing about twenty acres in the northeast corner of section 33, township 13 north, range 20 west, the record title of the entire section being in the plaintiff. One Theodore Donovan was, up to the time of his death, the owner of adjoining land described as the S. E. ^ of section 28 in said township. More than ten years prior to his death Donovan inclosed a part of the land in dispute, together with portions of his own lands, and used the same, each and every year thereafter, for general agricultural and gardening purposes. On June 2, 1915, Donovan died, leaving a will by the terms of which he devised and bequeathed all of his property of “whatever nature and description to Mr. and Mrs. W. C. Burks,” and Mr. Burks was by the will appointed “as executor and administrator” of his estate, and on June 26, 1915, letters were issued to W. C. Burks. The will was admitted to probate, inventory made and filed, the estate administered, decree of final distribution made,
Plaintiff does not dispute the occupancy and cultivation of the land by Donovan, but maintains that the same was not adverse to plaintiff. The testimony introduced by plaintiff tends to show that from 1906 to within three months of the time of his death, Donovan repeatedly tried to purchase this land from the plaintiff, and its immediate predecessor in interest, and that he never did make any claim of adverse ownership; that plaintiff paid taxes on the land during all of this time. Prior to the death of Donovan, one W. P. Maclay had agreed with plaintiff to purchase all of said section 33. Maclay was called as a witness, and in detailing a conversation which he had with Donovan, about a month before his death, said: “I was up there and stopped in. He was out in the garden, and we got to talking about that land, and he said, ‘If you buy this section, I would to have you let me have what is here this side of the road. * * * I have tried to buy it, but I haven’t been able to do it. Perhaps if you buy the whole
“The question of adverse possession is one of intention. The intention must be discovered from all the circumstances of the case.” (Lamme v. Dodson, 4 Mont. 560, 2 Pac. 298.)
“The possession of real estate may be open and notorious and still not be adverse.” (Crawford v. Ahrnes, 103 Mo. 88, 15 S. W. 341.)
We recommend that the judgment and order appealed from be affirmed.
For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.