Dutertre v. Shallenberger

• Decision Date: 28 October 1893
• Docket Number: 1,379.
• Parties: DUTERTRE v. SHALLENBERGER.
• Court: Nevada Supreme Court

34 P. 449

21 Nev. 507

DUTERTRE v. SHALLENBERGER.

No. 1,379.

Supreme Court of Nevada

October 28, 1893

Syllabus by Bigelow, J.

1. A case will not be reversed for want of a finding, or for a defective finding, unless the finding is excepted to or a finding is requested upon the omitted point.

2. The fact that the equitable owner of land permitted a number of years to elapse without taking action, which he might have taken, to obtain the legal title, does not prevent him, when sued for the land, from setting up his equity in defense of his possession.

3. Where, as here, the facts would be sufficient to entitle the equitable owner of land to the specific performance of a contract of purchase of the same, the case is taken out of the statute of frauds or conveyances, and no deed or instrument of writing establishing the agreement need be proven.

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

Action in ejectment by Louis Dutertre against G. N. Shallenberger. Defendant had judgment, and plaintiff appeals. Affirmed.

Torreyson & Summerfield, for appellant.

R. M Clark, for respondent.

BIGELOW J.

Action of ejectment. Trial by the court, and judgment for the defendant. The plaintiff is the owner of the legal title to the demanded premises, but the defendant sets up an equitable defense founded upon a purchase by him from the plaintiff's grantor, the payment of the purchase money and possession and improvement for a number of years, of all of which, it is alleged, the plaintiff had full knowledge at the time of his purchase.

It would appear that the answer sufficiently states an equitable defense to the action, and we do not understand this to be seriously controverted by the plaintiff. Certainly if, as alleged in the answer, the plaintiff knew of the defendant's purchase, of the payment of the purchase money, and of his possession and improvement of the premises it can hardly be said that the plaintiff was an innocent purchaser. The principal point made upon the appeal seems to be that the findings do not support the judgment in this that it was not found that the plaintiff knew of the defendant's claim to the land, or that the defendant's possession was sufficient to put the plaintiff upon notice of his equities. But, as we have seen, it was alleged in the answer that he did know all about the matter. No motion for new trial was made, and there was no exception upon the ground that the findings were defective, or for want of a finding upon this point. The plaintiff does not claim that there is anything in the findings showing affirmatively that he did not have this knowledge, or that the defendant's possession was not sufficient to put him upon notice, but only, if we understand his position correctly, that those facts are not expressly found.

It hardly ought to be necessary, at this day, to say that, where there is nothing in the...