Langworthy v. Coleman

• Decision Date: 16 December 1884
• Citation: 5 P. 65,18 Nev. 440
• Parties: LANGWORTHY v. COLEMAN.
• Court: Nevada Supreme Court

5 P. 65

18 Nev. 440

LANGWORTHY v. COLEMAN.

Supreme Court of Nevada

December 16, 1884

Appeal from the Fifth judicial district court, Nye county.

D. S Truman, for appellant.

Curler & Bowler, for respondent.

LEONARD J.

This is an action to recover possession of a town lot and buildings thereon, with damages. Plaintiff alleges ownership in himself, and ouster by defendant. Plaintiff recovered judgment for the possession of the premises described in his complaint, together with $108 damages, the value of the rents. Defendant appeals from the judgment, and an order denying his motion for a new trial. Plaintiff claims title through one Parker Belyea, by quitclaim deed, dated May 14 1881. Defendant asserts that the title was in his wife, by dee. from Mrs. Hattie Belyea, wife of Parker Belyea, dated November 9, 1882. Mrs. Belyea testified that prior to her marriage she paid one John Egan $150 for the property, and received a deed therefor in her name; that the money paid was her own, and that the property was purchased for herself alone; that the deed was put in a trunk and never recorded that she had made diligent search for the same, but could not find it; that Parker Belyea, her husband, had no authority or power to make the deed to plaintiff. On the contrary, plaintiff testified that the deed from Eagan was to Belyea, and not to his wife. It was not claimed that Eagan made two deeds, and the principal question of fact in the case was whether his conveyance was to Parker Belyea or to his wife.

The transcript shows that the defendant objected to the oral testimony of plaintiff upon the point in question; that his objection was overruled; and that he excepted. But it is not shown that any ground of objection or exception was stated. We cannot review the ruling under such circumstances. Sharon v. Minnock, 6 Nev. 382; Lightle v. Berning, 15 Nev. 389. The record shows, also, that in view of the fact that plaintiff had testified that he had Egan's deed in his possession, the court reserved its decision in the case until plaintiff had time, after the trial, to return home and return the deed for inspection; that, after going home, plaintiff sent to the judge a deed from Belyea to Franklin, but said in his letter that he did not find any other, though he was confident he had in his possession the deed from Belyea to him. Without recognizing the propriety of such practice, it is enough to say that the contents of plaintiff's letter cannot be considered as evidence in the case, and the result of the whole matter is this: Oral testimony was admitted on behalf of defendant, without objection, that the deed in question was from Egan to Mrs. Belyea; and equally positive testimony was admitted on behalf of plaintiff, no grounds of objection or exception having been stated, to the effect that the deed was to Mr. Belyea. The court evidently gave credit to plaintiff's statement, and found accordingly, although that fact does not appear to have been found in terms. It is our duty, however, to presume it, since there is no finding opposed to it, and such finding is necessary to support the judgment. More v. Lott, 13 Nev. 380; Sadler v. Immel, 15 Nev. 270.

Counsel for appellant contends that the deed from Belyea to plaintiff was inadmissible, because it did not show a conveyance of the premises sued for; that it conveyed no title to lot 18, described in the complaint; that by it, Belyea did not attempt to convey more than a stockade cabin and adobe front; that no land was conveyed, or, at most, only so much as was actually occupied by the buildings described. The language of the deed referred to is as follows:

"*** That said party of the first part, for and in consideration of *** does, by these presents, *** forever quitclaim unto the said party of the second part, *** all that certain lot, piece, or parcel of land situated *** and particularly described as follows, to-wit: One stockade cabin, and adobe front. Said cabin is known as the ' Egan cabin,' and situated ***; together with all and singular the tenements ***."

Then follows the habendum clause usually contained in conveyances of real estate. The objection now made was not made in the trial court. It cannot be presented and considered here for the first time. So far as the record...