Jennings v. Gorman

Decision Date24 May 1897
Citation48 P. 1111,19 Mont. 545
CourtMontana Supreme Court

Appeal from district court, Silver Bow county; J. J. McHatton Judge.

Action by Ellen Jennings, administratrix of the estate of Solomon Jennings, deceased, against Robert Gorman, for ejectment. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Plaintiff brought ejectment to recover possession of a certain tract of ground in Silver Bow county, and alleged an ouster of her intestate by defendant on July 1, 1889. Defendant denied ownership of Solomon Jennings, decedent, at any time after July 23, 1888, denied all other allegations of the complaint and affirmatively pleaded that neither plaintiff nor her intestate had been seised or possessed of the premises described in the complaint within five years before this action was brought, which was June 6, 1894. Defendant alleged that on and since July 23, 1888, defendant had been in exclusive and adverse possession, and that, if Solomon Jennings ever had a cause of action against defendant, it was barred by the statute of limitations. For an equitable defense, defendant pleaded purchase by him on July 23, 1888 of the premises in controversy, but that description thereof was inadvertently and by mistake omitted from a deed dated July 23, 1888, from Solomon Jennings and wife to defendant. Defendant prayed for reformation of the deed. The replication denied all new matter alleged. The equitable issues as to mistake and reformation of the deed were tried to the court which found for the plaintiff. Thereupon the issues of adverse possession and the statute of limitations were tried before a jury. The verdict was for defendant. Judgment was afterwards entered in defendant's favor, declaring him to be the owner and entitled to the possession of the land. Plaintiff moved for a new trial, but the court denied the motion. Plaintiff appeals.

L. J. Hamilton and Chas. O'Donnell, for appellant.

Stapleton & Stapleton and W. S. Shaw, for respondent.

HUNT J. (after stating the facts).

The defendant was obliged to prove his defense of adverse possession by a preponderance of evidence. He therefore assumed, as an essential element of his alleged adverse holding, the burden of proving a continuity of possession which ripened into a title. If there was an interruption of his holding, the term of his adverse possession closed. These rules are elementary, and were certainly applicable to the case at bar. Accordingly the defendant was allowed, although against plaintiff's objection, to offer his evidence tending to prove his continuous and exclusive occupation of the premises in controversy for the period of five years next preceding the commencement of this action. This evidence was to the effect that for the several years 1889, 1890, 1891 1892, and 1893 defendant had himself cultivated the ground, in hay crops, or that the land had been so cultivated by tenants of his, and that Robert Gorman, defendant, had control of the premises during that time. But when the plaintiff offered rebuttal testimony to contradict the defendant's witnesses upon the material matters just...

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