Green v. Christie

Decision Date06 April 1895
PartiesGREEN v. CHRISTIE
CourtIdaho Supreme Court

JUDGMENT OF COURT OF LIMITED JURISDICTION.-Where it is shown that a court of limited jurisdiction has obtained jurisdiction of the person by proper service of summons, the judgment rendered will not be held void for the reason that the record fails to show that a continuance was had for two days and not noted in the docket of the probate judge.

TITLE TO LAND.-Held, under the evidence, that the plaintiff had neither the legal nor equitable title to the land in controversy.

ADVERSE POSSESSION-WHAT MUST BE SHOWN TO ESTABLISH.-Adverse possession of land cannot be considered established under any of the provisions of the code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors have paid all the taxes, state county, or municipal, which have been levied and assessed upon such land according to law.

NO EVIDENCE TO SUPPORT CLAIM-WHAT NISI PRIUS COURT SHOULD Do.-There being not a scintilla of evidence supporting plaintiff's claim, the cause should have been taken from the jury and judgment entered for the defendant.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment reversed, with instructions.

Forney Smith & Moore, for Appellant.

An occupancy for a period of more than five years, together with payment of taxes, makes the title absolute under the code of Idaho. (Idaho Rev. Stats., tit. 2, c. 2, sec. 4043, subd. 2.) Under the law, where real property is sold on execution and the sheriff's deed made, the debtor remaining in possession is as much a tenant at will or tenant at sufferance of the purchaser as if the deed had been made by himself. (Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441; Buswell on Limitations of Actions, sec. 306; Dobbins v. Lusch, 53 Iowa 304, 5 N.W. 205; Munson v. Plummer, 59 Iowa 120, 12 N.W. 806; Hyatt v. Wood, 4 Johns. 150, 4 Am. Dec. 258; United States v. Chaboya, 2 Black, 593.)

James W. Reid, for Respondent.

Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely. (Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; 1 Am. & Eng. Ency. of Law, 225.) The law presumes nothing in favor of the jurisdiction of inferior courts. (1 Cowdrey's Justice, sec. 67, and notes; Mallett v. Uncle Sam Min. Co., 1 Nev. 188, 90 Am. Dec. 484; Paul v. Beagin, 1 Nev. 357; Little v. Currie, 5 Nev. 90; Keybers v. McComber, 7 P. 838; Thompkins v. Clackamas Co., 11 Or. 364, 4 P. 1210; Hughes v. Cummings, 7 Colo. 138, 203, 2 P. 289-928.)

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This is an action of ejectment, brought by the plaintiff, Arthur Green, against the defendant, George C. Christie, to recover the possession of certain lands in Latah county, and for damages. The cause was tried by the court with a jury, and a verdict rendered in favor of the plaintiff for the possession of said land and $ 1,000 damages, and judgment was entered in accordance with said verdict. A motion for a new trial was made and denied. This appeal is from the judgment and the order denying the motion for a new trial.

It is conceded that the respondent, Green, had both the legal and equitable title to said land on November 29, 1879, on which date a transcript judgment from the probate court of Nez Perces county, wherein one Raymond Saux was plaintiff and Arthur Green, the plaintiff herein, was defendant, was filed and docketed in the office of the clerk of the district court in and for Nez Perces county; that an execution was issued thereon, and the land in question levied upon under said execution, and sold to one Bernard Lowenburg in satisfaction of said judgment. A sheriff's deed by virtue of said sale was executed to said Lowenburg for the premises in dispute on the sixth day of December, 1880. Whatever title the defendant, Christie, had to said land was obtained from said Lowenburg, and all the title Lowenburg had was procured through the sheriff's sale and deed aforesaid. All of the files and record entries of the probate court of Nez Perces county in said cause of Raymond Saux v. Arthur Green, were introduced in evidence in the trial of the case at bar on behalf of defendant, Christie, which show that summons in said case in the probate court was issued on November 15, 1879, returnable in ten days; that it was served on defendant on the date of issue. The record so introduced fails to show that anything whatever was done in said case on the twentieth day of November, the return-day of said summons. Judgment by default was taken on the twenty-eighth day of November. The record fails to show any continuance from 26th of November to twenty-eighth day of November. It is contended by respondent that, as the record fails to show a continuance from November 26th to November 28th, the probate court lost jurisdiction, and for that reason said judgment was void. The record shows that the court acquired jurisdiction by personal service of summons, and it further shows that default was entered, the defendant having failed to appear and demur or answer. No jurisdiction need be presumed. It is shown by the record. The principle that the law presumes nothing in favor of the jurisdiction of a court of limited jurisdiction has no application here, for the reason that jurisdiction is shown. And we do not think jurisdiction was lost after it was acquired. While it is true that section 4759 of the Revised Statutes prescribes what the docket must contain, and the probate judge failed to note a continuance from November 26th to November 28th, we do not think the court lost jurisdiction for that reason. The evidence shows that Bernard Lowenburg purchased at sheriff's sale the land in dispute on the twentieth day of March, 1880, and a sheriff's deed therefor was duly executed, conveying the...

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15 cases
  • Bank of Commerce v. Baldwin
    • United States
    • Idaho Supreme Court
    • March 14, 1906
    ... ... 116, 117; Dalrymple v ... Hanson, 1 Cal. 127; Harney v. McLevan, 66 Cal ... 35, 4 P. 884; Gilman v. Bootz, 63 Cal. 121; Green v ... Christie, 4 Idaho 438, 40 P. 55, 56.) ... AILSHIE, ... J. Stockslager, C. J., SULLIVAN, J., concurring ... ...
  • Bayhouse v. Urquides
    • United States
    • Idaho Supreme Court
    • November 24, 1909
    ... ... establish his claim through adverse possession. (Sec. 4043, ... Rev. Codes; Swank v. Sweetwater Irr. Co. , 15 Idaho ... 353, 98 P. 297; Green v. Christie , 4 Idaho 438, 40 ... P. 54; Little v. Crawford , 13 Idaho 146, 88 P. 974.) ... It is self-evident in this case, however, that if the ... ...
  • Koon v. Empey
    • United States
    • Idaho Supreme Court
    • December 5, 1924
    ... ... possession thereof, for the period prescribed by the statute, ... and has paid the taxes thereon. ( Green v. Christie, ... 4 Idaho 438, 40 P. 54; Bower v. Kollmeyer, 31 Idaho ... 712, 175 P. 964; Faulkner v. Rondoni, 104 Cal. 140, ... 37 P. 883; ... ...
  • Hesse v. Strode
    • United States
    • Idaho Supreme Court
    • June 27, 1904
    ... ... party has paid all taxes assessed, against the land according ... to law. (Idaho Rev. Stats., sec. 4043; Green v ... Christie, 4 Idaho 438, 40 P. 54.) In respect to the ... title to real estate, if the party claiming title is ... acquainted with the true ... ...
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