Crossen v. Oliver

• Decision Date: 30 June 1902
• Citation: 41 Or. 505,69 P. 308
• Parties: CROSSEN v. OLIVER. [1]
• Court: Oregon Supreme Court

69 P. 308

41 Or. 505

CROSSEN v. OLIVER. ^[1]

Supreme Court of Oregon

June 30, 1902

Appeal from circuit court, Union county; Robert Eakin, Judge.

Action by M.S. Crossen against E.W. Oliver. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Turner Oliver, for appellant.

Eugene Ashwell and J.D. Slater, for respondent.

WOLVERTON J.

This is an action for the recovery of real property. The plaintiff had a verdict and judgment, and the defendant appeals. The appeal is based upon alleged errors of the trial court in refusing two instructions requested, overruling a motion to set aside the verdict and for a new trial, and in permitting the attorney for plaintiff, in his argument to the jury, to argue from facts, no evidence of which had been adduced at the trial.

The first instruction requested and refused is as follows "I instruct you further, gentlemen, that the mere statement of Mrs. Caldwell that she had sold the land, unless she indicated to whom she sold it, was not such notice as the law requires." The second, although differently expressed, is to the same purpose. Both parties claim title through Mrs. Caldwell,--the defendant, as a purchaser at an execution sale upon a judgment against her in his favor; and the plaintiff, by a deed from her executed before said judgment, but not recorded until after it was docketed. Mrs. Caldwell testified that she told Oliver before the judgment was rendered that she had sold the land, the purpose of which was to charge him with notice of plaintiff's title; Oliver claiming to be an innocent purchaser through his judgment. There is some other evidence in the record, intended to supplement this testimony, which was offered and admitted for the purpose of showing that Crossen was in possession of the land at the time Oliver obtained his judgment; thus affording constructive notice of his title, although his deed was not recorded. With this understanding, it is apparent that the instructions requested were directed against a single item of the testimony intended to establish notice as to Oliver, and for this reason were properly refused. It is not good practice to single out the testimony of one witness, or to point to a single item of testimony, and instruct the jury that it is not sufficient to warrant a verdict, when there is other evidence in the case which could rightfully be considered in the same relation. The testimony of Mrs. Caldwell, referred to in the instruction, was not all the testimony going to the same point; and it was proper, therefore, that it should be submitted to the jury, in connection with such other testimony, and not made the subject of a separate instruction upon the question of notice. As supporting this view, see Church v. Melville, 17 Or. 413, 21 P. 387; Moran v. Higgins (Ky.) 40 S.W. 928; Dawson v. Boat Club (Mich.) 84 N.W. 618, 622.

The next question arises upon defendant's motion to set aside the verdict and for a new trial; his contention being that the evidence adduced as to notice of Crossen's prior title was not sufficient in law upon which to submit the case to the jury. If counsel desired an appealable order on this question, a motion for nonsuit, or to instruct the jury to find for the defendant interposed at the proper time, would have been appropriate; but a motion to set aside the verdict and...