162 P. 376 | Mont. | 1916
delivered the opinion of the court.
The action is in ejectment, and, according to the complaint, involves certain parcels of land situate in the eity of Helena. Of these, the plaintiff, respondent here, alleges that he is the owner and entitled to the possession; he also avers that on May 7, 1914, the defendants without right or title ousted and ejected him therefrom, and that they have ever since unlawfully withheld, and now unlawfully withhold, such possession from him. The answer is elaborate. Its effect is a general denial; a plea of title and right to possession under and by virtue of two certain tax deeds issued to Henry Adami and John Steinbrenner; a plea of adverse possession since March 1, 1897, under said tax deeds; separate pleas of Code sections 6432, 6436, and 2654 (as amended by Chapter 50, Session Laws of 1909), as statutes of limitation; and a plea of estoppel to deny title, based upon plaintiff’s knowledge and acquiescence since March 1, 1897, in the procurement of said tax deeds by Adami and Steinbrenner, the delivery of the property to them, and the payment by them of large sums of money for care of the property, improvements thereon, and taxes, as well as upon actual recognition by the plaintiff of their ownership and dominion over said property in virtue of said tax deeds. The affirmative allegations of the answer were put in issue by the reply.
II. The defendants grounded their resistance upon title under and by virtue of the tax deeds. These were made and delivered in purported pursuance of certificates previously issued upon sales for delinquent taxes for 1893 and 1894, and were received in evidence over the plaintiff’s objection that they were inadmissible without a showing of compliance with the precedent steps required by law for their issuance, and because, being deficient in description and showing a sale en masse, they are void upon their face. Later the plaintiff himself offered the eertifi
The deed for the taxes of 1894 is open to the same reflections, except that it does not sell one-half of part of lot 14, Thompson Placer, and does make it clear beyond the need of inference that the part of lot 14, Thompson Placer, offered and sold is composed of separate, noncontiguous parcels. So, too, the evidence establishes this latter fact, and shows how difficult, if not impossible, would be the task of applying to any of these parcels
face, were ineffectual to constitute title, they were evidence of a claim of title ample to sustain a possessio pedis (Morrison v. Linn, 50 Mont. 396, 147 Pac. 166), if not, as some authorities insist, color of title sufficient, under general statutes of limitation, to support adverse possession of the lands adequately described. (Wood on Limitations, sec. 259; note, 27 L. R. A. (n. s.) 339 et seq.)
V. Counsel earnestly insist that the order granting a new trial overturned a result which the record shows to have been right, whether viewed from the position of the plaintiff or from that of the defendants. They argue that the plaintiff relied on title through the assignee, whose deed was proved by them to be without authority, because their obligations had not been paid. It may be doubted whether the defendants are in position to make this contention, as they do not claim under the trust established by the deed of assignment, but in hostility to it. However that may be, there was evidence sufficient to take to the jury the question whether in point of fact the obligations intended to be secured by this deed of assignment had been paid.
Ample reason appearing for the order appealed from, the same is accordingly affirmed. Affirmed.
Rehearing denied January 25, 1917. '