Brooke v. Jordan
| Decision Date | 30 April 1894 |
| Parties | BROOKE v. JORDAN. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; H. R. Buck Judge.
Ejectment by Benjamin C. Brooke against Edward Jordan. Judgment for plaintiff. Defendant appeals. Affirmed.
T. J Walsh, for appellant.
Shober & Rasch, for respondent.
By this action in the nature of ejectment plaintiff seeks to recover possession of lots 9 and 10, block 64, of the city of Helena whereof he alleges in his complaint ownership in fee and right of possession at all times since July 1, 1886, on which date, while plaintiff was such owner, and entitled to possession of said premises, defendant wrongfully entered and took possession of the same, and has ever since wrongfully withheld possession thereof from plaintiff, to his damage in the sum of $50; wherefore plaintiff demands judgment for possession, damages, and costs. The issue raised by the answer of defendant is correctly stated in the brief of his counsel, as follows: "Defendant denies plaintiff's title, and alleges that the locus in quo is not a part of the original township of Helena, but of the N.E. 1/4 of the N.W 1/4 of the N.E. 1/4 of Sec. 36, Tp. 10 N., R. 4 W., of which defendant is the owner." Before the trial, plaintiff departed this life, and his administrators were substituted as plaintiffs in the action. Upon the verdict returned by the jury judgment was entered in favor of plaintiff for recovery of possession of the premises described, one dollar damages and costs; and defendant's motion for new trial was overruled, and he appealed from that order and the judgment.
The record raises for determination the following points:
First. It appears that decedent's title to lot 10 of said block was shown by the introduction of a deed of conveyance thereof, duly executed and delivered to him by the probate judge of Lewis and Clarke county, who held title to said townsite as trustee. But to establish title to lot 9 in decedent it was sought to prove the contents of a deed claimed to have also been executed and delivered by said trustee, conveying said lot 9 to plaintiff, which deed was lot before the same was recorded. After certain preliminary proof was introduced as to the execution and delivery of said deed conveying lot 9 to decedent, the court permitted proof of its contents. On this point it is contended by appellant that sufficient foundation had not been laid for proof of the contents of the alleged deed as a lost instrument, because the evidence did not show sufficient search therefor to authorize the proof of its contents. The evidence produced on behalf of plaintiff in this regard is -- First, a record of the probate court, introduced in evidence without objection which record recites that a deed of conveyance of said lot 9 block 64, of the townsite of Helena, was executed and delivered by the probate judge conveying the same to Benjamin C. Brooke on December 21, 1875; and, secondly, the testimony of witness John H. Shober, Esq., was introduced on behalf of plaintiff, to the effect that said deed was put into his custody by decedent, along with other papers, for safe-keeping; that said witness, a lawyer by profession, carefully examined said deed at the solicitation of decedent, and from such examination testifies that the instrument was a good and sufficient deed of conveyance of said lot, duly executed by said probate judge as...
To continue reading
Request your trial