79 Neb. 845 | Neb. | 1907
The plaintiff’s action is to recover the possession of the south half of the southeast quarter, the southeast quarter of the southwest quarter, and lot 4, all in section 19, township 19, range 24, Custer county. All parties to the action claim the right to possession through a common source of f,itle. The petition is an ordinary declaration in eject
William McCombs Avas indebted to Shelly Rogers Company, the indebtedness being secured by real estate mortgage covering the land in dispute. The deed to Shelly Rogers Company Avas taken in satisfaction of the debt. R. W. McCombs is a son of William McCombs, and on behalf of the defendants it is claimed that William McCombs orally authorized the son to sell the land and retain AAdiatever consideration he might receive in excess of an amount sufficient to pay the debt to Shelly Rogers Company, and that the contract of November 2, 1898, Avas made pursuant to this oral agreement; that the consideration for the contract Avas a horse of the value of $100, Avhich Avas then delivered to R. W. McCombs. It appears from the testimony of William McCombs that he never saAv the contract with Day until about a month prior to the trial. On his examination he testified as folloAvs: “Q. What dealings did you have with Day? A. I never had any in fact. Q. Has your wife had any dealings or business transactions with Day? A. No. Q. Were you selling the land a second time Avhen you sold it to Shelly Rogers Company? A. No. Q. Then the transaction that your son Wesley had with Day Avas not a sale, AAras it? A. I should say it was if he had complied with the contract. Q. If who complied
The contract Avas never recorded, and the evidence of possession is of so unsatisfactory a nature as to justify the conclusion reached. It is true that the defendants testified generally that they entered into possession of the land at the time the contract was made and have ever since that date continued in possession, but the facts testified to by them, construed in a light most favorable, disclose that the locality AAdiere the land is situated was occupied largely, by cattlemen for grazing purposes; different proprietors had large tracts of land inclosed by fence for pasture. After securing the contract, the defendant C. B. Bay, by closing up gaps between the pasture fences of other proprietors, inclosed about 30 acres of the land in dispute, Avith some 7,000 acres of government land, to Avhich he made no claim of title, and a section of school land that he did claim, and occupied the land Avithin the inclosure as a pasture for his own stock and the stock of other persons, Avhich he pastured for a consideration. About 100 acres of the land was under cultivation at the time of the contract Avith Bay, and Avas not inclosed by ■fence until the fall of 1901, after the deed to Shelly Rogers Company had been executed. This cultivated land the defendants claim to have farmed, but no one fixed the date when they 'commenced to farm the land earlier than the
The judgment of the district court is amply supported by the evidence, and violates no principle of law, and it is recommended that it be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.