Ming v. Foote
| Decision Date | 28 January 1890 |
| Citation | 23 P. 515,9 Mont. 201 |
| Parties | MING v. FOOTE et al. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county.
Comly & Foote, for appellants.
Carpenter Buck & Hunt, for respondent.
This action is in the nature of ejectment. The respondent, as executrix of the estate of John H. Ming, deceased, seeks to recover from appellants lots 1, 2, and 3, in block 417, of the town-site of the city of Helena, alleging title in herself, and ouster by the appellants. Appellants' answer admits that they are in possession of the premises demanded and alleges title in themselves, which title they seek to establish as hereinafter treated of. The action was tried before the court without a jury. Findings of fact and conclusions of law were made, and filed by the court, and judgment thereon entered in favor of respondent for possession of the lots. A motion for a new trial, made by appellants, was denied. From that order and the judgment this appeal is prosecuted.
The facts, as we obtain them from the record, are as follows: In 1869, Helena was an unincorporated town in Lewis and Clarke county, Montana territory. In that year Miers F. Truett probate judge of that county, made due application to the United States for patent for the land on which the town was situated; and afterwards, June 15, 1872, the patent was duly issued by the United States to such probate judge, in trust for the inhabitants of the town, under the provisions of the act of congress approved March 2, 1867, entitled "An act for the relief of the inhabitants of cities and towns upon the public lands," and the acts amendatory and applicable thereto. The land in controversy is within said patent. On December 20, 1872, N. Hilger, then probate judge of said county, made, executed, and acknowledged a bargain and sale deed to John H. Ming and Charles K. Wells of lots 1 2, and 3, in block 417, a portion of the town-site of Helena, granted to the probate judge as above described, and which is the ground in controversy in this action. The grantor in that deed is described as "N. Hilger, probate judge of Lewis and Clarke county, Montana territory;" and executes it as "N. Hilger, probate judge." The lots were described as bounded on the south by Eighth avenue, on the north by lot 10, and on the east by Hoyt street. Twelve other lots were included in the deed. The total consideration was $50. By mesne conveyances, the title so conveyed by the probate judge became and was vested in John H. Ming, by whom this action was commenced, prior to the initiation thereof. During the pendency of the case the original plaintiff died, and respondent, as executrix of his estate, was duly substituted, and the cause thus proceeded. A plat of the said Helena town-site was prepared by one A. C. Wheaton, by order of the probate judge, in 1868, and was accepted and approved January 7, 1869, by the board of commissioners of the county, and duly filed at the same time in the office of the county clerk and recorder. On the Wheaton plat are designated lots 1, 2, and 3, in block 417, bounded as above described. It does not appear that there were any field-notes made or filed with the Wheaton plat. That in pursuance to the act of the legislative assembly of the territory approved March 1, 1883, entitled "An act relating to the official survey of the town-site of Helena," a plat and field-notes of a survey of such town-site were made by one McIntire, and accepted and approved on September 12, 1885, by the board of county commissioners, and on the same day filed in the office of the county clerk and recorder. That on said plat and in said field-notes appear lots 1, 2, and 3, in block 417, bounded on the south by Eighth avenue, on the north by lot 10 of said block, and on the east by Hoyt street. On May 10, 1887, the appellant George B. Foote entered upon the land in controversy, claiming under a deed from Harry H. Thale and George Orth, and engaged in fencing it; and that before the fence was finished said John H. Ming was upon the premises claiming the same. That since said day George B. Foote has been and now is in possession of the premises. That he at no time prior to May 10, 1887, made any improvements thereon. It does not appear that when Ming and Wells received their deed from Probate Judge Hilger they were occupants or in actual possession of the lots, or made any proof to the probate judge of their right to such possession or occupancy of the same. To almost all of this evidence objections were made by the appellants, the reasons for which we will review hereinafter in discussing the specifications of error. In addition to the above facts, appellants offered to prove on the trial, and were precluded therefrom by the ruling of the court, the following facts: That lots 1, 2, and 3, in block 417, as the same are described in the Wheaton plat, would occupy a different portion of the surface of the earth than lots 1, 2, and 3, block 417, as described in the plat and field notes of the McIntire survey. Appellant offered in evidence a quit claim deed from one Anton Emueller to himself, dated May 9, 1887, acknowledged May 11, 1887, and recorded May 12, 1887, in which the ground purporting to be conveyed is described as lots 1, 2, and 3, block 417, of the town-site of Helena; also a deed from Probate Judge Clements to Harry H. Thale and George Orth, dated May 10, 1887, recorded May 11, 1887, and a deed from said Thale and Orth to appellant Foote, dated May 10, 1887, and recorded May 11th,--in which deeds the premises purporting to be conveyed are described by lots and block, as above. Appellant then offered to prove by the then probate judge an application to purchase said lots by said Thale and Orth. The above evidence, so proffered by appellant, was heard by the court under objections, but was stricken out, and not considered. It was, however, in evidence that Emueller, mentioned above, had once a sort of transitory floating possession of the premises for placer mining purposes, and with a cabin, but not since the year 1873.
The district court found the facts as above recited, and upon such findings, and upon the exclusion of appellants' proposed testimony, reached the following conclusions of law: (1) The answer of the defendant does not allege that the premises claimed by the defendant are located elsewhere than the premises described in the complaint, and the pleadings relate to the same parcels of ground. (2) That the Wheaton plat was, from and after its approval in 1869 until 1885, the official plat of the said town-site of Helena, under the laws of the United States and said territory. (3) That the said McIntire plat and field-notes of survey of said block 417, from and after the 12th day of September, 1885, became and are the official survey of said block No.417, and confirmed all the rights and interests of plaintiffs therein, as shown by the conveyances of title to the plaintiffs and their predecessors in interest from the said probate judge of said county, and cured the alleged incompleteness and inaccuracy of the said Wheaton plat. (4) That the issuance of said deed by said Hilger, as the probate judge of said county, conveyed to said Ming and Wells the legal title to said lots 1, 2, and 3, in said block 417, and that the said J. M. Clements, the probate judge of said county, had no authority, as the said trustee of the said town-site of Helena, to issue said deed to the grantors of the defendant. (5) That the deeds issued to the said defendant by his grantors conveyed no title, right, or interest to the premises in controversy in this action. (6) That as between the parties to this action the defendant cannot question the validity of the acts of the probate judge of said county in conveying the property in controversy to said Ming and Wells. (7) That the defendant and his grantors had notice of the title of plaintiffs, and the approving and filing of the said McIntire plat, about two years before the construction of the fence by the defendant (8) That defendant upon the 10th day of May, 1887, entered upon said premises, and has ever since held the possession thereof, without any right or title thereto. (9) That the plaintiffs have suffered damage in the sum of one dollar.
The appellants, on motion for a new trial, made 20 specifications of error, which are now brought before us for review. They can, however, be much reduced in number, many of them depending on one point. For instance, the first error urged which we will consider is the conclusion of the court below that Ming and Wells, so far as the purposes of this action and the position therein of the plaintiffs are concerned, acquired good title to the premises in controversy, by virtue of the deed from Probate Judge Hilger to them. Upon the decision of this point depends a large portion of appellants' position. This, determined in either way, disposes of the objection to the exclusion of the deed from Probate Judge Clements to Thale and Orth, the deeds from the latter to the appellants, the exclusion of evidence of occupancy by Thale and Orth, and their application to purchase from the probate judge, the exclusion of the deed from Emueller to Foote, and the admission of the chain of title from Ming and Wells to the respondent.
Again the district court found that the pleadings admitted that the premises demanded in the complaint and claimed in the answer were identical; in other words, that the matter of non-identity was not raised by the pleadings, but the contrary admitted. Upon the decision of this specification depends all of appellants' objections as to the exclusion of their proffered testimony that lots 1, 2, and 3, block 417, in the Wheaton survey, were entirely wanting in geographical...
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