85 P. 1092 | Idaho | 1906
This is an action to quiet title to eight and four-tenths acres of land situated in the south half of the northeast quarter of section 4, township 20 north, of range 23, in Lemhi county.
Respondents answered separately, each pleading four separate defenses: (1) A denial of the allegations of the complaint; (2) the establishment of the boundary line by verbal agreement; (3) that in the year 1887, a mutual understanding was had between the defendants Baker and the predecessor in interest of plaintiff, that as soon as patents were issued by the United States to the respective claimants, for their several tracts of land, that it would be to their mutual benefit to enter into a contract to exchange certain parts of their land, making a certain road or highway the boundary, and Baker to convey to the said Withington a tract containing two and eight-tenths acres, and Withington to convey to
Respondent Bagley’s answer shows that he is holding as tenant of respondent Baker.
Trial was had before the court without a jury, and findings and judgment made and entered against the plaintiff. A motion for a new trial was overruled. The insufficiency of the evidence to support the findings of fact is assigned as error.
The following, among other facts, are clearly established by the evidence: That one L. P. Withington, now deceased, was the husband and predecessor in interest of the appellant, Julia Fleming, and the respondent Baker occupied adjoining lands for thirty years, which land was held by them several years prior to the extension of the government survey over them.
Thereafter Withington entered the northeast quarter and the north half of the southeast quarter of section 4, township 20, range 23, in Lemhi county, as a desert claim and obtained a patent therefor from the United States on August 18, 1890.
The eight and four-tenths acres of land in dispute is a part of the land entered by Withington. Said Withington died in 1902, intestate, leaving as his heirs the appellant and several children, all of whom have conveyed their interests to the appellant, and she is now the owner thereof. Respondent Baker entered adjoining land and received a patent from the United States to the same on February 12, 1887.
In the year of 1884 or 1885, an understanding was had between said Withington and Baker that a stage road and a lane which ran across said lands should be their dividing line when they received their patents from the United States, and that when they received their patents from the United States the respondent Baker would deed to said Withington
After Baker took possession of said eight and four-tenths acres tract, he removed the rocks and ridges therefrom and placed the same in cultivation, and constructed a building thereon of the value of $200, and leased a part of same to respondent Bagley, who has erected a storeroom thereon of the value of $700; and other parties have built a hotel, saloon, bam, cellar, ice-house and hay corral upon said land. The first claim made to this land, after said agreement was entered into by Withington and Baker, was made after the death of Withington and after the marriage of his widow, the appellant, to another man.
By reason of-the part performance of said contract, it does not come within the statute of frauds prohibiting oral sales of real estate.
We have examined the other errors assigned and find no merit in them. The judgment is affirmed, with cost in favor of the respondents.