19 Mont. 562 | Mont. | 1897
The ownership of the property sued for was the principal question tried in this case. Appellant conten Is that the evidence was insufficient to justify the verdict.
W ithout recapitulating it, we think it was sufficient, in so far as it affected all property described in the complaint except the black horse branded P and the brown mare. These latter animals plaintiff swore she had traded for with one Jesse Miller, exchanging certain cattle which belonged to her for them. Her testimony in this respect was substantially corroborated by several other witnesses, including Miller, the vendor, and was only disputed by defendant’s testimony of the use of horses by plaintiff’s husband in the fulfillment of a contract he had, and by plaintiff’s neglect to assert ownership of the animals.
The issue of the ownership of these horses was based upon evidence quite different from that pertaining to the rest of the property, which the jury found was transferred to the plaintiff by the husband and plaintiff’s sister in bad faith.
Without holding that the evidence clearly showed that plaintiff owned the two horses traded for with Miller, we are impressed with the belief that, considering the evidence bearing upon this branch of the case, appellant’s objections to the instructions are sound, and that the court ought not to have assumed in its instructions throughout the charge, as it did, that plaintiff had obtained title to all the property sued for by purchase from her husband or her sister, who in turn said she had purchased from plaintiff’s husband. It by no means followed that, if that portion of the property which plaintiff obtained from her husband and sister was fraudulently claimed by her, the two horses obtained from a third person were not her own, or that she could not recover them or their value.
