61 P. 287 | Idaho | 1900
This is an action of unlawful detainer, and was brought in the probate court of Nez Perces county. The answer of defendants set up title to the land in controversy, and the case was certified to the district court. The answer also set up an equitable defense, and, before the trial, motion was made by counsel for defendants (who are respondents here) for judgment on the pleadings. After hearing argument of respective counsel, the court denied said motion, and declined to try the equitable defense upon the ground that it did not constitute an equitable defense. Thereupon the action was tried by the court with a jury upon the issues thus made, and the verdict and judgment were entered in favor of defendants. This appeal is from the judgment and order denying a new trial.
The appeal was submitted on the brief of appellants, with permission to counsel for respondents to file brief within ten days thereafter. No brief has been filed on behalf of respondents. The following facts, among others, appear from the record: The appellant claimed title deraigned as follows: On March 9, 1894, in the district court of the second judicial district, in an action there pending, wherein Mrs. B. Saux & Co. were plaintiffs, and John H. Morrison and others were defendants, such proceedings were had that a judgment was rendered and entered against said defendants and in favor of said plaintiffs. Thereafter execution was issued thereon, and lev
We are at a loss to know why this case was tried upon the theory that it was an action in ejectment. The complaint does not contain the allegations required in a complaint in ejectment, and only prays for a restitution of the premises, and for damages for the detention thereof. The answer denied the material allegations of the complaint, and set up title in the respondents. It also set up' an equitable defense by way of cross-complaint. The court, however, declined to try the equitable defense, upon the ground that the allegations did not constitute an equitable defense. The court charged the jury that this was an action in ejectment, and the party showing the better title must recover. The court also charged the jury that the sheriff’s deed to Vollmer would not bind respondents, because they were not parties to said judgment ,and for that reason the recitals in the sheriff’s deed were insufficient as to them. Whatever title either the appellant or respondents had to said land was procured through Morrison. He was the common source of title claimed by both appellant and respondents. The respondents took their title from Morrison subject to said judgment lien, and were privies thereto, and were bound by said sheriff’s deed and the recitals contained therein as-firmly as was Morrison. The instructions referred to were-erroneous, and it was prejudicial error to give them. As the record clearly shows that the appellant is the legal owner of said land, and entitled to the possession thereof, it would be useless to remand the case for a new trial. The judgment is reversed, and the cause remanded, with instructions to enter judgment in favor of the appellant for the restitution of said promises as prayed for, without damages and for costs of suit.. Costs of appeal are awarded to appellant.