Buckley v. Buckley, No. 1,043

No. 1,043 | Nev. | Apr 15, 1881

By the Court,

Leonard, C. -L:

This is the third appeal of this case. (12 Nev. 426; 9 Id. 373.) Prior to the last trial in the court below, the defendant married J. Y. Peers, whose Avife she Avas at the time of the trial. Before the jury AvaS impaneled plaintiff moved the court for leave to file a supplemental complaint, alleging such marriage in August, 1876. The last trial was in April, 1880. Defendant recovered verdict and judgment, awarding to her a return of two thousand and fifty sheep, or, in case a return could not be had, their value, fixed at three dollars per head, together with legal interest as damages, from November 5, 1873, the date of their seizure by plaintiff. Defendant testified that she married Peers in August, 1876; whereupon plaintiff again moved for leave to make him party defendant. The motion was denied, and plaintiff moved to strike out all the testimony given for defendant, upon the ground that it was irrelevant and immaterial, and did not tend to show any right in the defendant to a return of the property, she having married since the bringing of this suit. That motion' was also denied.

The court instructed the jury as follows: “As it is admitted that the plaintiff leased the sheep in question to Henry A. Buckley, now, so far as the defendant claims that the said Henry A. Buckley afterwards obtained title to a part or the whole of the said sheep, by means of an exchange or trade of sheep, the burden of proof is on the defendant, and before you can legally find in her favor as to the acquiring of title by such exchange or trade, that fact must be established by a preponderance of the evidence admitted in the case for your consideration; and unless such exchange or trade is established by a preponderance of evidence in the case, you must find for plaintiff as to such sheep so claimed by defendant to have been so acquired by Henry A. Buckley.”

Upon that instruction the jury found as above stated; and there is ample, testimony to support the finding that, the title,became vested in Henry A. Buckley, and, consequently that plaintiff had no right to the possession of the property, whether the defendant after her marriage had such right or not. Defendant’s marriage undoubtedly extinguished her authority as administratrix; but it by no means follows from that fact that, she had not the right to retain possession of the property of the estate until the appointment of her successor, or until otherwise ordered by the court. One of her most important duties was to account for all the property of the estate which had come'into her possession; and for a failure so to do she is liable. From the verdict of the jury the plaintiff had no more right to the possession of this property than any other stranger. His taking and detention were wrongful, although he observed the forms of law in so doing.

At the time this action was commenced, the defendant had the right of possession, by reason of her duty as ad-ministratrix to take control of the property of the estate; and at the time of trial, so far as the record shows, she was still entitled to its possession, because of her responsibility to the estate. Her possession having been lawful while her authority as administratrix continued, nothing to the contrary appearing, the presumption is that it was lawful after her marriaga, especially as against a wrong-doer. (Wells on Beplevin, 69, 71.) Having no rights in the property, plaintiff’s duty was to return it to defendant’s rightful possession, to be accounted for by her as required by law. This much is true upon the supposition that she had merely a special property in the sheep, by reason of her former official capacity, and her liability to the estate, in ease of failure to account for them according to law, while, if she had a general property in them, because of her relation to Henry A. Buckley, that was another reason for awarding the right of possession to her. Besides, if the court erred, technically, in denying the motion to make Peers a party defendant, a question we shall not consider, it was an error that in no sense prejudiced the rights of plaintiff. If he had been made a party, the result, as to him, must have been the same. The jury would still have said that he had no rights in the property in dispute.

We are of opinion, also, that the preliminary proof was sufficient to justify the court in admitting in evidence the several entries contained in Henry A. Buckley’s memorandum book. (Buckley v. Buckley, 12 Nev. 442.)

Finding no error in the record, the judgment and order appealed from are affirmed.