Foster v. Willson

• Decision Date: 09 January 1883
• Parties: FOSTER and others v. WILLSON.
• Court: Montana Supreme Court

5 Mont. 53

FOSTER and others

v.WILLSON.

Supreme Court of the Territory of Montana.

Filed January 9, 1883.

Where it does not appear from the complaint that the description fails to identify the property, a demurrer will not lie; subsequent defects or uncertainties arising upon the evidence or otherwise do not properly arise upon demurrer.

A complaint demanding possession of “a house, and lot of ground on which it stands, lying one-eighth of a mile in a westerly direction from Rainbow Hotel, being the house where Clark Hall and wife resided,” will not support a judgment for “a house and lot 60x100 feet, lying one-eighth of a mile in an easterly direction from Rainbow Hotel, being the house where Clark Hall and wife resided,” the uncertainly of the direction not being overcome by the definiteness of the rest of the description.

From Second district, Silver Bow county.

Knowles & Forbis, for respondents.

Randolph & Dewitt, for appellant.

WADE, C. J.

This is an action in the nature of ejectment to recover the possession of a certain house and lot situate in the county of Silver Bow, and described as follows: “That certain house, and lot of ground on which it stands, situate and being in the town of Walkerville, in said county of Silver Bow, Montana territory, and about one-eighth of a mile westerly from the hotel and boarding-house of Rolla Butcher, called the Rainbow Hotel, and about four hundred yards southerly from the Alice Gold & Silver Mining Company's mill, said house being known as the Clark Hall House, and being the house where Clark Hall and wife formerly resided.” The defendant demurred to the complaint because of the insufficiency of the description of the property, which was overruled, and thereafter the defendant made default, and the plaintiffs, upon a hearing and proofs, recovered a judgment in their favor for the following described property: “That certain house, and lot on which it stands, situated and being in the town of Walkerville, in said county of Silver Bow, Montana territory,and about one-eighth of a mile easterly from the hotel and boarding-house of Rolla Butcher, and called the Rainbow Hotel, and about four hundred yards southerly from the Alice mill, said house being known as the Clark Hall House, and being the house where Clark Hall and his wife formerly lived and resided, and being situate in the lot of ground lying east of and adjoining lots numbered thirty (30 and 31) thirty-one, in block number four, of...