Leyson v. Davenport

• Decision Date: 21 December 1908
• Citation: 98 P. 641,38 Mont. 62
• Parties: LEYSON v. DAVENPORT et al.
• Court: Montana Supreme Court

98 P. 641

38 Mont. 62

LEYSON v. DAVENPORT et al.

Supreme Court of Montana

December 21, 1908

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by John H. Leyson against Lee Davenport and others. From an order granting plaintiff a new trial, defendants appeal. Affirmed.

C. M Parr, for appellants.

E. N Harwood, for respondent.

SMITH J.

The district court of Silver Bow county sustained a motion to exclude all evidence under the following complaint:

"For cause of action against said defendants, plaintiff complains and alleges:

"(1) That on the _____ day of July, 1899, plaintiff's predecessor in interest, James S. Watson, was the owner seised in fee an possessed and entitled to the possession of that certain lot or parcel of land and the valuable dwelling house thereon, situate in the city of Butte, county of Silver Bow, state of Montana, more particularly described as follows, to wit [description], and on or about said date said James S. Watson and one R. S. Feurtado entered into an agreement, by the terms and provisions of which the said Watson agreed to sell and convey said property to said Feurtado for and in consideration of the sum of $4,779.20, to be paid in 30 installments of divers sums of money, which sums said Feurtado promised in and by the terms of 30 promissory notes made and delivered by him on or about the date aforesaid to pay to said James S. Watson for the purchase of said property; that by the terms and conditions of the first of said notes said Feurtado promised to pay to said Watson on or before October 1, 1899, the sum of $172.50, the same being the largest amount mentioned in any of said promissory notes, and by the terms and conditions of the other 29 of said promissory notes there became due and payable an installment of over $150 of said agreed purchase price at the end of each period of three months succeeding the date last aforesaid. And it was further expressly agreed by and between said James S. Watson and R. S. Feurtado in and by the terms of said agreement that time is of the essence of said agreement; and it was further agreed by the terms, tenor, and effect of said agreement that, in the event of default of payment of any of said installments mentioned in either of said promissory notes when due and payable according to the terms thereof, then all right on the part of said Feurtado to purchase said premises or otherwise in relation thereto became and was forfeit, null, and void. And it was further provided and agreed in and by the terms, tenor, and effect of said agreement that said R. S. Feurtado shall pay and discharge at maturity all taxes, assessments, liens, and other incumbrances then existing on said property at the time of making said agreement or thereafter assessed or levied thereon.

"(2) That said R. S. Feurtado entered into and used said premises for some time prior and up to about the 1st day of May, 1902.

"(3) That said R. S. Feurtado made default, failed and neglected to pay any of said installments which he promised as aforesaid to pay for the purchase of said property; and he also made default, failed, and neglected to pay the taxes duly assessed and levied on said property, to wit, taxes levied by said county of Silver Bow in the sum of $28.39, and by the city of Butte in the sum of $20.80, for the year 1902, and taxes levied on said property by said city in the sum of $20.80, and by said county in the sum of $28.39, for the year 1903, and said property was heretofore sold for said taxes, and said Feurtado made default, failed, and neglected to pay any of said promissory notes or to perform any condition of said agreement made by and between him and said Watson to be done and performed by said Feurtado.

"(4) That all the while from and after default of payment of the first of said series of promissory notes by said Feurtado on October 1, 1899, when the same became due and payable according to the terms thereof, he, the said Feurtado, had no right, title, or interest whatsoever in or to or in relation to said property, and all the while he occupied said property after said last-mentioned date he became indebted to said Watson and his successors in interest for the use and occupation thereof.

"(5) That during all the times herein mentioned the title to said property in fee simple absolute was standing in the name of said James S. Watson, as shown by the public records of said county of Silver Bow, until it was sold, assigned, and conveyed to plaintiff as hereinbelow set forth.

"(6) That on April 17, 1902, 11 of said promissory notes, the principal of which aggregates $1,864.50, were past due and wholly unpaid, and said R. S. Feurtado had not only made default in the payment thereof, but had failed and neglected to perform any conditions of said agreement with said James S. Watson to be done and performed by said Feurtado; that at some time on or between the 17th day of April, 1902, and the 1st day of May, 1902, the said defendant Lee Davenport without right, title, or interest in said premises, and acting in collusion with said Feurtado, entered into said premises and into the use and occupation of the valuable dwelling house situate thereon and occupied the same continuously from the 1st day of May, 1902, to the 1st day of January, 1903.

"(7) That on or about January 1, 1903, the defendant Lee Davenport without right, title, or interest in said premises, and acting in collusion with his brother, the defendant John R Davenport, and Anna Davenport, caused the latter to enter into and occupy said premises as pretended tenant of said Lee Davenport, and the said John R. Davenport, Anna Davenport, and Lee Davenport...