Foster v. Wilson

5 Mont. 53 | Mont. | 1883

Wade, C. J.

This is an action in the nature of ejectment to recover the possession of a certain house and lot, situate in the county of Silver Bow, and described as follows: “That certain house and lot of ground on which it stands, situate and being in the town of Walkerville, in' county of Silver Bow, Montana territory, and about one-eighth of a mile westerly from the hotel and boarding-house of Rolla Butcher, and called the Rainbow Hotel, and about four hundred yards southei’ly from the Alice Gold and Silver Mining Company’s Mill, said house being known as the Clark Hall house, and being the house where Clark Hall and wife formerly resided.”

The defendant demurred to the complaint because of the insufficiency of the description of the property, which was overruled, and thereafter the defendant made default, and the plaintiffs, upon a hearing and proof, recovered a judgment in their favor for the following described property: “That certain house and the lot on which it stands, situated and being in the town of Walkerville, in said county of Silver Bow, Montana territory, and about one-eighth of a mile easterly from the hotel and boarding-house of Bolla Butcher, and called the Bainbow Hotel, and about four hundred yards southerly from the Alice mill, said house being known as the Clark Hal] house, and being the house where Clark Hall and his wife formerly lived and resided, and being situate in the lot of ground lying east of and adjoining lots numbered thirty (30 and 31), thirty-one, in block No. four of the town of Walkerville, Silver Bow county, Montana territory, and being sixty feet wide and one hundred feet long.”

1. The demurrer was properly overruled. It does not appear from the complaint that the description failed to identify the property. The demurrer only reaches such defects as appear on the face of the complaint. Subsequent defects or uncertainties brought to light by the evidence, or in any other manner, do not properly arise on demurrer.

2. Does the complaint support the judgment? The complaint must support the judgment, and the question whether it does or not can be raised in the supreme court for the first time.

The complaint describes a house and lot one-eighth of a mile westerly from the Bainbow Hotel and four hundred yards southerly from the Alice Mill, known as the Clark Hall house, being the house where Clark Hall and wife formerly resided. The judgment describes a house and lot one-eighth of a mile, easterly from the Bainbow Hotel,— one-half of a mile at least from the property described in the complaint. If the same property was intended, there must be a mistake either in the description contained in the complaint, or in that contained in the judgment. If by the words “ the Clark Hall house ” it could be understood that the house was a public house, or that it was so generally and publicly known, they might sufficiently identify the property and cure the uncertainty; but these words are qualified, and their force, as words of description, is pretty much destroyed by the words that follow: “being the house where Clark Hall and wife formerly resided. ” The fair inference is that this was a private house; and how long Hall resided therein, whether for a month, or a year or series of years, or how many other houses in the same neighborhood he and his wife might have occupied, does not appear. It is too much to ask the court to say that the property described in the complaint is identical with that described in the judgment. For all that we know, two separate and distinct pieces or parcels of property are described, which seem to be separated by the space of one-half mile.

If Clark Hall ever resided with his wife in two houses in that neighborhood, this conclusion would be almost inevitable.

The complaint demands possession of a certain “house and lot of ground on which it stands.” It is uncertain whether this description would include any more ground than that covered by the house. But in the judgment the ground is expanded into a lot sixty feet wide by one hundred feet long.

This complaint and judgment ought to be made to correspond. They ought to be made to support each other.

To affirm a judgment not supported by the complaint is simply to breed another law-suit to do away with the effect of this one.

The judgment is therefore reversed, and the cause remanded for a new trial.

Judgment reversed.