19 Mont. 545 | Mont. | 1897
The defendant was obliged to prove his defense of adverse possession by a preponderance of evidence. He therefore assumed, as an essential element of his alleged adverse holding., the’burden of proving a continuity of possession which, ripened into a title. If there was an interruption of his bolding, the term of his adverse possession closed. These rules are elementary, and were certainly applicable to the case at bar. ' Accordingly the defendant was allowed, although against plaintiff’s objection, to offer his evidence tending to prove his continuous and exclusive occupation of the premises in controversy for the period of five years next preceding the commencement of this action.
This evidence was to the effect that for the several years 1889, 1890, 1891, 1892 and 1893, defendant had himself cul
But when the plaintiff offered rebuttal testimony to contradict the defendant’s witnesses upon the material matters just suggested, and tried to introduce evidence to show that defendant did not have exclusive possession of the premises, and did not exercise exclusive control over them during the whole period of five years immediately preceding the institution of this action, but that plaintiff’s intestate was in possession, the defendant objected, and the court sustained the objection.
This was prejudicial error, and requires a reversal of the case. Manifestly, if evidence to support the defense of adverse possession was permitted at all, testimony to rebut such evidence was competent.
The case seems to have become complicated in the course of its proceeding. The equitable defense of a purchase of the ground in controversy by defendant, and that there was a mistake in the deed delivered to him, was tried to the court, and decided against defendant. This was an adjudication of the fact that legal title was in Jennings at the time of defendant’s entry.
But upon exactly what ground the learned judge, who tried the case, based his decision upon the equitable issues, does not appear in the record. We would have been aided by knowing his views upon this branch of the case, for they would have shed light upon the conduct of the subsequent trial, and his rulings upon the legal issues. It. would seem as though, when the equitable defense was disposed of, the evidence in support of that defense became immaterial to the issues of adverse possession, unless the case was tried upon the theory that if defendant claimed title to the ground in controversy, which was not included in his deed, yet he by mistake believed it was, he could recover upon adverse possession.
Whether or not this theory was warranted by the evidence, we need not now decide; and whether or not the important questions raised by our suggestion that this was the theory
The judgment is reversed, and the cause is remanded for a new trial.
Reversed and Remanded.
