83 P. 604 | Idaho | 1905
— This is an action in ejectment, and involves the right to the possession of the northeast quarter of the southeast quarter of section 27, township 30 north, range 4 east, in Idaho county, the same being included in what is referred to in the record as the W. F. Smith ranch. United States survey of said land was but recently extended over it.
It appears that Whitman first came to the land in dispute in April, 1903, remained a day or two, returned to Montana, and again returned to Idaho in May', 1903, and remained there until the following October, when he went to Montana and returned to Idaho in April, 1904. Said partnership was dissolved about April, 1904, and under the dissolution agreement, said MeMurry conveyed whatever title he had in said W. F. Smith ranch to the appellant. The deed of conveyance is dated the twenty-second day of April, 1904,
We think the court erred in excluding said deeds. The object and purpose of counsel in offering them was to show that whatever title appellant had to the land and his right to possession thereof, he procured through those deeds. That he went into possession under the title deraigned through them. The land was at that time a part of the public domain and had not yet been surveyed and no segregation of it had been made by entering it under any of the land laws of the United States. The relevancy of that evidence is clearly. apparent.
MeMurry testified as a witness on behalf of the respondent and testified that he had released the forty acres in dispute to the respondent McComas in the spring of 1903, and that he released it by and with the consent of the appellant, while the appellant testified that respondent never released it with appellant’s consent, or at all. And the fact that he executed said deed of April 22, 1904, conveying said Smith ranch to the appellant, particularly describing it, .and that said deed was witnessed by the defendant McComas, was a circumstance tending to support the evidence of the
There is a conflict in the evidence in this ease, and if the fact that McMurry'conveyed the Smith ranch to the appellant more than a year after he claimed to have turned the forty in dispute, over to the defendant, and the deed witnessed by defendant had been' presented to the jury, we are not able to say that their verdict would have been in favor of the defendant.
Counsel for respondent states in his brief that the deed from' McMurry to the appellant, which was offered in evidence by the appellant was rejected by the court as incompetent and irrelevant, but regardless of that fact he consented that it should be introduced in evidence, or that he-himself introduced it, and that it was read to the jury; that plaintiff’s said exhibit “B” is the same as Defendant’s Exhibit “3,” folio 253 of the transcript. It appears that the counsel has gotten the exhibits mixed in his mind, as Plaintiff’s Exhibit “B” was a quitclaim deed from W. F. Smith to one M. S. McMurry. Defendant’s Exhibit “A” was a quitclaim deed from said McMurry to the appellant, and the only indication we have in the transcript that the defendant ever offered a paper marked Defendant’s Exhibit “3” is that the transcript contained the quitclaim deed from McMurry to the appellant under the caption of Defendant’s Exhibit “3.” We have carefully searched the transcript to find whether Plaintiff’s Exhibit “A” was ever introduced in evidence, or that the defendant ever intro- ‘ dueed said exhibit as his Exhibit “3,” and have failed to
The record shows that the appellant furnished the money to McMurry with which he bought said W. F. Smith ranch, and if the testimony of the plaintiff be true, McMurry is attempting to perpetrate a fraud upon his former partner by testifying that he had turned said forty acres over to his nephew about a year prior to the time of the dissolution of the partnership, and prior to his conveying it by deed to his former partner, the appellant. It was error for the court to exclude the testimony of plaintiff to the effect that he entered into possession of the land in dispute under and by virtue of said deeds of conveyance. While it is true that the evidence was not sufficient to show that the plaintiff had remained in possession of the land in dispute as late as the fall of 1904, when he was forcibly driven from it with a gun by the respondent, there is evidence to show that he went into the possession of the said premises lawfully, and then it devolved upon him to show that he continued in posses
Counsel for appellant offered in evidence the notice and claim of a possessory- right dated November 4, 1904, made under the statutes of this state, and on objection of counsei for the defendant, the court excluded it. This action of the court is assigned as error. It is alleged in the complaint that on the third day of November, 1904, the plaintiff was lawfully possessed of said tract of land, and that the defendant about 2 o’clock P. M. of that day, entered into the possession of the said premises and ousted the plaintiff. As the appellant thus admits that he was ousted from said premises on the third day of November, 1904, a claim of possessory right made and filed on November 4, 1904, would not be competent evidence in the case. The court did not err in rejecting that notice.
Over the objection of counsel for the appellant, the court allowed the respondent to testify to conversations between himself and McMurry relative to McMurry allowing the defendant to take possession of the disputed forty, which conversations were not in the presence of the appellant. This was clearly error, for no conversations between the defendant and McMurry not had in the presence of the appellant could bind the appellant. The court erred in admitting such conversation.
McMurry testified that he released the forty in dispute to the respondent in February or March, 1903, and that he notified his partner Whitman, by letter, of that fact. We have in the record said letter from McMurry to Whitman dated March 2, 1903, in which he says, among other things: “Ho [referring to defendant] wants us to let him have the forty that joins him on the west and we take the forty I spoke about on the plat, if he could get it that way, he would take it, and I would rather see him get it than someone else, but I told him that I couldn’t make a trade of that kind at present, but I told him I would let him claim that forty and I would claim the other and then when we got our deeds
The giving of certain instructions are assigned as error. That part of the instructions commencing at folio 312 as follows: “And if the said McMurry and the said McComas agreed, etc.” to and including that part of folio 316, ending with these words, to wit: “In the actual possession of the land in dispute, ’ ’ is clearly erroneous under the facts of this case, as the evidence clearly shows that McMurry notified McComas that Whitman was interested in that land with him, and that he could not make the change without Whitman’s consent.
The refusal to give the requests of the plaintiff numbered 2, 3, 4 and 5 is assigned as error. They each refer to and are applicable to the evidence, and it was error for the court to refuse them. Much stress is laid by counsel for the appellant upon the fact that the respondent had done certain plowing and cut certain hay on the land in dispute. The testimony of the appellant tends to show that that was one done under an arrangement and an agreement with the respondent, whereby he was to have the grain raised on the plowed land and the hay cut thereon was simply an exchange of hay, and the fifth request above referred to applied to that state of facts and was the law applicable thereto. The judgment is reversed, and a new trial granted. Costs of this appeal are awarded to the appellant.