Conter v. Herschel

• Decision Date: 08 November 1897
• Docket Number: 1,502.
• Citation: 50 P. 851,24 Nev. 152
• Parties: CONTER v. HERSCHEL et al.
• Court: Nevada Supreme Court

50 P. 851

24 Nev. 152

CONTER v. HERSCHEL et al.

No. 1,502.

Supreme Court of Nevada

November 8, 1897

Appeal from district court, Humboldt county; A. E. Cheney, Judge.

Action by Mrs. J. E. Conter against Clara Herschel and others. From a judgment for defendants, and from an order denying her motion for new trial, plaintiff appeals. Affirmed.

L. A Buckner and David S. Truman, for appellant.

W. S Bonnifield and J. F. Dennis, for respondents.

BONNIFIELD J.

This action was brought to secure partition of certain lands water right, and personal property, which the plaintiff alleged in her complaint were owned and possessed, ever since the 16th day of May, 1889, by the plaintiff and defendant Clara Herschel as tenants in common, in equal shares, and for an accounting. The court found that the plaintiff and Clara Herschel were the owners, as tenants in common, of a part of the lands and all of the water right named in the complaint and ordered partition thereof. The court found that the plaintiff had no right, title, or interest in the other lands described in the complaint, and had no right, title, or interest in any of the personal property, and decided that she was not entitled to partition of said other lands, nor of said personal property, and that she was not entitled to an accounting. From said decision denying said partition and an accounting, and the order denying her motion for new trial, the plaintiff appeals.

The plaintiff's contention, in substance, is that in 1889 and prior thereto, one Isaac West and defendant Clara Herschel were the owners and in possession of all of said property as tenants in common, share and share alike; that while they were so the owners and in possession, West, on the 16th day of May, 1889, conveyed to the plaintiff all his right, title, and interest in and to said property by deed of gift, and that by virtue of said deed the plaintiff succeeded to all the rights of West in the premises. As to that part of the land which was excluded from the order of partition, it is sufficient to say that there is evidence tending to show that it does not belong to the co-tenancy. With reference to the personal property, the evidence on the part of the plaintiff tends to show that, if any of it belonged to the co-tenancy, the plaintiff had neither the possession nor the right of possession when this suit was brought; that said deed of gift was executed by West, and received by the...