Brandon v. West, 28 Nev. 500

28 Nev. 500 | Nev. | 1905

Lead Opinion

By the Court,

Talbot, J.:

This action was brought against the defendant West as administrator, and the other defendants as heirs, of the estate of B. G. Clow, deceased, to compel the execution of a deed to plaintiff for a triangular piece of land, marked with three iron pins and less than one acre in extent, as described in the complaint. The uncontradicted testimony of several witnesses introduced by the plaintiff shows -that Clow in the year 1901, and a considerable time before his death, sold to plaintiff a sand hill or sand pit which is identical with or embraced in the boundaries of the parcel of land mentioned; that he went upon the premises, marked and pointed out the boundaries to the plaintiff, put him in possession, and accepted a cow in payment. Thereafter plaintiff hauled and sold sand from the pit exclusively, and his right to the same was expressly acknowledged upon different occasions by Clow, who directed to the plaintiff persons applying for sand. No evidence was offered by the defendants. The court was in doubt as to whether the proofs showed a sale of the land, but, at the request of the plaintiff, found that he "purchased the sand situated upon and in the sand hill described in plaintiff’s complaint and the exclusive right to take sand therefrom”; that Clow received and retained possession of the cow, and that prior to and long after his death plaintiff was in possession of the property and taking sand. From a judgment in favor of defendants for their costs, and an order overruling a motion for a new trial, this appeal is taken.

The burden being upon the plaintiff to establish clearly an executed sale, and there being a doubt as to whether Clow intended to sell the land in fee, or only the sand, leaving the land for him or his estate when stripped of it, the court properly refused to enforce a conveyance of the freehold to plaintiff, but it having been plainly indicated by the evidence and the court having found that there was an executed sale of the sand by Clow to the plaintiff, the latter was entitled to relief to that extent. In principle, the plaintiff has an interest in the land like the right to remove stone or cut timber or maintain a roadway or other easement, or like a lease or term for life or years, and, although less than freehold, the plaintiff, after being placed in possession and making payment, became entitled upon demand to a conveyance to the extent of his purchase, which could be recorded, and which would give notice of his ownership from Clow, who held that part of the title for him as a trustee, the same as Clow would have retained the whole title if the sale had been of the freehold. This legal title having passed to his successors by operation of law, it is incumbent upon them to convey it to plaintiff. (Schroeder v. Gemeinder, 10 Nev. 367; Lake v. Lewis, 16 Nev. 94; Powell v. Campbell, 20 Nev. 233, 20 Pac. 156, 2 L. R. A. 615, 19 Am. St. Rep. 350; 1 Tiffany, Modern Law of Real Prop. 10; Thompson v. Smith, 63 N. Y. 303, and cases there cited; Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526, and annotation; Felch v. Hooper, 119 Mass. 52; Masterson v. Pullen, 62 Ala. 146; Wehn v. Fall, 55 Neb. 547, 76 N. W. 13, 70 Am. St. Rep. 397; Swepson v. Rouse, 65 N. C. 34, 6 Am. Rep. 735; Adams v. Harris, 47 Miss. 144; Corson v. Mulvany, 49 Pa. 88, 88 Am. Dec. 485; Morgan v. Morgan, 2 Wheat. (15 U. S.) 302, 4 L. Ed. 242; Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181; Newton v. Bronsin, 67 Am. Dec. 89; W. U. Tel. Co. v. Pittsburg, C., C. & St. L. Ry. Co. (C. C.) 137 Fed. 435; 5 Pom. Eq. Jur. 3d ed. secs. 12-16, and cases cited, volume 1, Id. 367.)

If the proofs had indicated the sale of sand on land different from that described in the complaint, there would have been a fatal variance; but when they establish that the plaintiff is entitled to an interest in or a part of the estate, quantity, or amount of land, money, or personal property claimed under the allegations and demand in the complaint, he should be given, under such circumstances as exist here, relief to that extent, and not be forced to further litigation. That the plaintiff may recover less than the whole of that which he demands without being relegated to another action is according to usual practice, and any other rule would tend to a multiplicity of suits,‘and occasion unnecessary delays and hardships.

In Bogan v. Daughdrill, 51 Ala. 316, the bill averred a contract for the sale of more than four hundred acres, and the decree of the chancellor enforcing it as to eighty acres only was sustained, and it was said that it is a general rule at law and in equity that a plaintiff may recover a part only of what he claims.

In Drury v. Conner, 6 Har. & J. 288, cited in that opinion, the plaintiff claimed the conveyance of the whole of a piece of land, bnt tbe proofs entitled him to an undivided one-fourth only, which was decreed to him.

In Vicksburg R. R. Co. v. Ragsdale, 54 Miss. 215: "We know of no rule of equity which denies relief to a party altogether, because he has made a false claim as to part of it. In so far as he has shown title to relief, to that extent he should be redressed."

The sand is a part of the land for which the plaintiff seeks a deed in his complaint the same as ore, marble, or stone before removal is a part of the realty. (State v. Berryman, 8 Nev. 268; Kingsley v. Holbrook, 45 N. H. 319, 86 Am. Dec. 173; Stevenson v. Bachrach, 170 Ill. 256, 48 N. E. 327; State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224; Cary v. Daniels, 8 Metc. 480, 41 Am. Dec. 532; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; 2 Blackstone Com. 18; Lime Rock R. R. Co. v. Farnsworth, 86 Me. 130, 29 Atl. 957.)

The defendants were aware that the plaintiff demanded a conveyance of the whole of the land, and they could have avoided costs by tendering a deed for that part of it comprising the sand, and the right of its removal, in the same way that immunity from costs may be secured by an offer to allow judgment for a less sum or estate, or for a smaller quantity of land or personal property, than that demanded in the complaint. In Schroeder v. Gemeinder, Justice Hawley, speaking for this court, said: "We are satisfied that the objection urged, upon the ground that the premises described in the deed were not the same as described in the lease, is not well taken, for the reason that no such objection was made at the time the deed was presented. If that was the only objection, the respondent ought to have so stated at the time of the tender. But, in any view, this objection could only be urged upon a question of costs, and not to defeat appellant’s rights. Courts of equity ought to determine the rights of the parties according to the broad principles of justice and fair dealing, and not by the technical and refined distinctions of the law.”

The judgment and order are reversed, and the district court is directed to decree the execution on the part of the defendants of the proper deed conveying to the plaintiff the sand on the premises described in the complaint, and the exclusive right to remove the same, to which he is entitled as shown by the uncontradicted evidence and findings, with his costs, if the proper memorandum thereof is filed within two days after the entry of the decree under the usual practice and section 3581 of the Compiled Laws. Pursuant to the motion of respondents the items of expense in the lower court are striken out of the cost bill filed here, but the reporters’ fees of $34, for transcribing notes for the record on appeal, and the cost of typewriting briefs, are allowed to stand under rule VI (p. 6 of this volume) and the decision in the recent case of Candler v. Ditch Co., 28 Nev. 422, 82 Pac. 458.

NORCROSS, J.: I concur.

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Dissenting Opinion

Fitzgerald, C. J.,

dissenting:

Finding myself unable to concur in the prevailing opinion, I deem it proper to make a brief statement of my view of the case as it appears from the transcript filed in this court. This is a suit for specific performance of an alleged contract to convey land. The contract was in the complaint of plaintiff alleged to have been made by plaintiff with one B. G. Clow in the lifetime of said Clow; and the suit is against N. H. West, as administrator of the estate of Said Clow, and also against others named in said complaint as claiming under said Clow. The case was tried without a jury, and the trial court gave' judgment against plaintiff. The plaintiff appeals from said judgment, and also from the order of the court denying his motion for a new trial.

The question before us on this appeal is: Does the evidence sustain the judgment and order? .1 think it does. The plaintiff sued for land, specifically describing it, alleging a contract with defendants’ intestate to convey the same; but his evidence — the defendants not having put in any other than to cross-examine plaintiff’s witnesses — shows that he had no contract to convey land, but merely the sand on the premises described. I deem it unnecessary to quote or minutely state the evidence here. It is deemed sufficient that the general statement be here made that no one of plaintiff’s witnesses gives evidence of a buying or selling of land, or a contract for buying or selling land. All the evidence is as to buying and selling the "sand pit” or the "sand hill” on certain premises described in said evidence; or contracting to sell such sand pit or sand hill. Under such state of facts this court would not be justified in disturbing the finding of fact made by the trial court that there was no contract for buying, selling, or conveying land; and without such contract there was nothing of which the court could decree specific performance. The court, however, did find, as a fact, that there was a contract between plaintiff and defendants’ intestate to sell to plaintiff the sand on a certain piece of land described in plaintiff’s complaint; and on this finding, appellant claims that it was error in the court not to give plaintiff judgment for this sand and for plaintiff’s cost of suit. Under the pleadings and evidence in the ease I think the court could not have properly so adjudged.

There was no allegation in the complaint of a denial on the part of defendants, or any one of them, of this right of plaintiff to the sand; or any allegation of refusal by the defendants, or any one of them, to permit plaintiff to take the sand in accordance with the contract as stated in said finding. It is true the court made a finding of such contract; but it made no finding of any breach of said contract. So far as anything that appears in said finding is concerned the defendants may have always permitted plaintiff to take the sand in accordance with the contract found to have been made with plaintiff by defendants’ intestate. Under such circumstances the court could not have adjudged against the defendants for either the sand or the costs of the suit, because plaintiff had failed to prove defendants to have been 'in default. Should defendants hereafter refuse to permit plaintiff to take the sand in accordance with the contract, as stated in the said finding, it may be that plaintiff would have his action to enforce said contract; for then it may be that he could allege, not only a contract to take the sand, but also breach thereof by defendants. But as the case now stands here there is no breach of such contract, either alleged in the complaint or proved by the evidence.

Therefore, finding no error in reference to either the judgment or the order appealed from, I think said judgment and the said order should be affirmed.