Comaita v. Kyle

• Decision Date: 02 February 1885
• Citation: 5 P. 666,19 Nev. 38
• Parties: COMAITA v. KYLE.
• Court: Nevada Supreme Court

5 P. 666

19 Nev. 38

COMAITA v. KYLE.

Supreme Court of Nevada

February 2, 1885

Appeal from a judgment of the Sixth judicial district court, Eureka county, entered in favor of plaintiff, and from an order denying defendant's motion for a new trial.

H. K Mitchell, for appellant.

Baker & Wines, for respondent.

LEONARD J.

This is an action to recover damages for the alleged conversion of personal property, to-wit, about 15,000 bushels of charcoal and 450 cords of wood. The following uncontradicted facts were proven by plaintiff:

On the fifteenth of November, 1882, one Locatelli was indebted to plaintiff in the sum of $2,120. On the evening of said day defendant, the sheriff of Eureka county, came to plaintiff's house and stopped all night. After making several inquiries, plaintiff concluded that defendant was on the way to Locatelli's ranch for the purpose of attaching the latter's property. Plaintiff waited until defendant had retired for the night, when he started for Locatelli's ranch. He arrived there about 7 o'clock in the morning. He took with him a man by the name of Allison, to assist him in settling with Locatelli. Plaintiff informed Locatelli that the sheriff was then on his way to attach him, and proposed to pay him $100 in coin, and satisfy his indebtedness for work done in burning coal and cutting wood, and cancel Locatelli's indebtedness to plaintiff if Locatelli would sell him the ranch and the wood, and coal thereon. Locatelli accepted the proposition, and thereupon he executed to plaintiff the following instrument in writing:

"$2,120. ANTELOPE VALLEY, November 16, 1882.

This is to certify that for and in consideration of the sum of two thousand and one hundred and twenty dollars, the receipt whereof is hereby acknowledged, I have this day sold, and do by these presents sell and deliver, to John Comaita a certain wood and coal ranch on which I now reside, situate west of Antelope Valley, and immediately west of Antelope Valley, and immediately west of the old Lamaroux ranch, together with the wood chopped, and piled or pitted, and all the coal burned, with two horses and one wagon, to have and to hold the same for himself and his heirs forever.

Witness: GIACOMO LOCATELLI.

I. T. WILSON,

JOEL ALLISON."

After executing the above instrument, Locatelli and plaintiff were informed that the former must discharge his hired men, go away from the ranch, and leave plaintiff in charge and possession of everything. This was done. Locatelli remained away about 10 days. Before or after the execution and delivery of the certificate or bill of sale, Locatelli did nothing relating to the wood or coal other than as above stated. There were no words or acts of delivery of either wood or coal. Plaintiff did nothing to take possession of either, except to receive the bill of sale. The coal was in six or seven piles, some distance from each other and from the cabin where the bill of sale was executed and delivered to plaintiff. Plaintiff did not go to the stacks of coal or piles of wood, and had never before that morning been on the ranch or seen the property. Nearly all the wood and coal were in the canon near the cabin, and nearly all in plain sight of the cabin. In about an hour after the purchase had been made, and Locatelli had left the cabin and ranch, defendant arrived, and levied his writ of attachment upon the ranch, wood, coal, etc., in question, in the case of Tognini v. Locatelli. At that time plaintiff had done nothing in relation to the property, except to receive the bill of sale. Before the levy, plaintiff showed defendant the bill of sale as the source of his claim and title, and notified him that he had bought all the property described therein from Locatelli, and had paid for it. Immediately after the levy, plaintiff left the ranch, and has never returned. Plaintiff introduced no proof as to the extent of the ranch, or that it was inclosed. The bill of sale was executed and delivered to plaintiff in the cabin which belonged to Locatelli, and which was occupied by him and his men when working on the ranch. It is not disclosed whether or not the land is a portion of the public domain.

Upon the above facts shown by plaintiff, defendant moved for a nonsuit upon the following grounds:

" First. That the uncontroverted case made by plaintiff constituted a fraud in law.

Second. That from the testimony it appears that plaintiff claims the personal property described in the complaint by virtue of a pretended purchase of real property upon which the personalty is situated, and that the instrument in writing under which he claims the real property is insufficient to convey any right or possession to the real property, and is void.

Third. That there is not any evidence that the ranch was inclosed by any actual inclosure, or anything equivalent thereto, to show the extent of plaintiff's dominion or control of the same, as claimed by him, or otherwise.

Fourth. That the testimony shows that the plaintiff relies upon a constructive possession of the land where the coal was pitted and the wood piled to make out his possession of the personal property, in which case he can only recover by the introduction, as evidence, of such a deed as...