68 P. 558 | Ariz. | 1902
Charles Goldman, administrator of the estate of M. Wormser, deceased, brought an action of ejectment on February 24, 1900, in the district court of Maricopa County, against Pedro Sotelo, to recover possession of one hundred and ten acres of land in Maricopa County, to which he claimed title and the right of possession in M. Wormser, deceased, at the time of death, and in himself, as administrator, on May 10, 1898, on which date he alleged' ouster, wrongful possession, and refusal to surrender on the part of the defendant. The defendant set up in his answer peaceable and adverse possession under title or color of title for three years next before the commencement of the action; peaceable and adverse possession of the premises, cultivating, using, and enjoying the same and paying taxes thereon, and claiming under a deed or deeds duly registered for more than five years next before the commencement of the action; and set up' the bar of limitation in such cases provided. In addition to the statute of limitations, he set up a plea of not guilty and a general denial, after which, as a special further defense, he alleged that: “The plaintiff does hold a certain deed or deeds purporting to convey the lands and premises described in the complaint from the defendant to said M. Wormser,
The appellant has assigned nine several errors on the part of the lower court, seven of them directed against the instructions of the court. The most serious objection to the instructions of the court is urged against the third instruction given at the request of the defendant, to wit: “The court instructs the jury that, in order for him to recover in this action, it is not sufficient for the plaintiff to show the legal title in himself, but he must also show he had the right of possession of the property in question at the time of the commencement of this action, and has such right of possession now; and, even if the plaintiff be found by you, from the evidence, to have the legal title, if you further find that the defendant had, at the time of the commencement of this action, a just and equitable right to the possession of the said property, then your verdict must be for the defendant.” The giving of this in
This condition of the case narrowed down the issue before the jury to the consideration of the character of the instruments in question, and left the case in such condition “that,
The judgment of the lower court is reversed, and the cause is remanded for new trial.
Sloan, J., and Davis, J., concur.