Whitman v. McComas

• Decision Date: 20 December 1905
• Citation: 11 Idaho 564,83 P. 604
• Parties: WHITMAN v. MCCOMAS
• Court: Idaho Supreme Court

83 P. 604

11 Idaho 564

WHITMAN v. MCCOMAS

Supreme Court of Idaho

December 20, 1905

EJECTMENT-ADMISSION AND REJECTION OF EVIDENCE-INSTRUCTIONS.

1. On the trial of an ejectment case, the court should admit all testimony offered by the plaintiff tending to prove his possession.

2. No instructions should be given to the jury, except those including the law applicable to the facts of the case as shown by the evidence, and the general principles of law governing the case.

(Syllabus by the court.)

APPEAL from the District Court of Idaho County. Honorable Edgar C Steele, Judge.

Action in ejectment. Judgment for the defendant. Reversed.

Judgment reversed, and a new trial granted. Costs of this appeal awarded to the appellant.

L Vineyard and T. H. Bartlett, for Appellant.

The plaintiff had a right to have this notice of possessory claim to the land in dispute introduced and considered by the jury. (Idaho Rev. Stats. 1887, c. 4, p. 407.) This statute was borrowed from California, where it has been in force since 1850. We believe the case of Coryell v. Cain, 16 Cal. 567, is distinctly applicable to the present case. The law, as announced by Judge Field in that case, has never been reversed, but has been repeatedly affirmed in subsequent cases for the possession of public lands. The principle laid down in that case has been affirmed in the case of Feirbaugh v. Masterson, 1 Idaho 135. The witnessing of a deed to one's own land, done with knowledge of the real state of the title, will estop him from setting up against the grantee a claim to the land. (Bigelow on Estoppel, 4th ed., 553.) Silence will postpone a title when one should speak out, when knowing his own right (if he had any) he suffers his silence to lull him to rest, instead of warning him to danger; when, to use the language of the books, "silence becomes a fraud," he will be estopped. (Donisthorpe v. Fremont etc. R. R. Co., 30 Neb. 142, 27 Am. St. Rep. 387; Tyson v. Neill, 8 Idaho 607, 70 P. 790.) Plaintiff, under an allegation of seisin, may introduce any proof which he may have, showing him to be entitled to the possession. (Stark v Burnett, 15 Cal. 361; Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181.) Deeds, etc., may be introduced in evidence to show title or right of possession. (Steinfeld v. Ross, 6 Ariz. 91, 53 P. 494, 192; Partridge v. Shepard, 71 Cal. 470, 12 P. 480; Milsap v. Stone, 2 Colo. 137; Root v. McFarrin, 37 Miss. 17, 75 Am. Dec. 49; Kitts v. Austin, 83 Cal. 167, 23 P. 290; Gray v. Dixon, 74 Cal. 510, 16 P. 305.)

W. N. Scales, for Respondent, cites no authorities on the point decided.

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, J.

This is an action in ejectment, and involves the right to the possession of the northeast quarter of the southeast quarter of section 27, township 30 north, range 4 east, in Idaho county, the same being included in what is referred to in the record as the W. F. Smith ranch. United States survey of said land was but recently extended over it.

The complaint contains the usual allegations of a complaint in ejectment, and judgment for possession is prayed for with damages. The answer is a specific denial of the allegations of the complaint. The cause was tried by the court with a jury, which resulted in a verdict for the defendant, and judgment was entered accordingly. The appeal is from the judgment. Numerous errors are assigned, going to the admission and the rejection of certain testimony, and the rejection and giving of certain instructions to the jury. It appears from the evidence that the appellant and one M. S McMurry were partners as early as December, 1902, and that such partnership was formed for the purpose of procuring title to certain land, including the land in question, situated in Idaho county, and raising stock thereon. At that time the appellant and said McMurry were residents of the state of Montana. McMurry went into Idaho county, Idaho for the purpose of procuring a stock ranch for said partnership, and it appears from the evidence that he purchased what is known and referred to in the record as the W. F. Smith ranch, which includes the forty acres in dispute, and took a conveyance of said Smith ranch in his own name and other lands. That some time in the spring of 1903, the respondent, who is the nephew of said McMurry, purchased an adjoining ranch known as the Bowen ranch, and it appears that the appellant and respondent and said McMurry agreed to and did fence a large tract of land consisting of about four hundred and eighty acres, including the W. F. Smith ranch, a part of the Bowen ranch, and other lands.

It appears that Whitman first came to the land in dispute in April, 1903, remained a day or two, returned to Montana, and again returned to Idaho in May, 1903, and remained there until the following October, when he went to Montana and returned to Idaho in April, 1904. Said partnership was dissolved about April, 1904, and under the dissolution agreement, said McMurry conveyed whatever title he had in said W. F. Smith ranch to the appellant. The deed of conveyance is dated the twenty-second day of April, 1904, and was signed and acknowledged on that date. It was witnessed by the respondent J. B. McComas. Counsel for appellant on the trial offered that deed in evidence, and on objection by counsel for the respondent, the court excluded it. By that deed, McMurry conveyed to appellant all of his right, title and interest of every kind or nature, as stated in the deed, to wit: "In and to my squatter's right and location and possession, on a certain one-fourth section of land, including one hundred and sixty acres of land known as the W. F. Smith ranch, lying in the Clearwater Meadows, which said one hundred and sixty acres of land being bounded on the north and east by Jesse McComas' and on the south by Miss Cora McMurry's place." At the same time, counsel for plaintiff offered a quitclaim deed of the same premises from the said W. F. Smith to the said McMurry. Those deeds were offered for the purpose of laying the foundation to show that plaintiff had deraigned his title to the right of the possession to the land in dispute in this action through them.

We think the court erred in excluding said deeds. The object and purpose of counsel in offering them was to show that whatever title appellant had to the land and his right to possession thereof, he procured through those deeds. That he went into possession under the title deraigned through them. The land was at that time a part of the public domain and had not yet been surveyed and no segregation of it had been made by entering it under any of the land laws of the United States. The relevancy of that evidence is clearly apparent.

McMurry testified as a witness on behalf of the respondent and testified that he had released the forty acres in dispute to the respondent McComas in the spring of 1903, and that he released it by and with the consent of the appellant, while the appellant testified that respondent never released it with appellant's consent, or at all. And the fact that he executed said deed of April 22, 1904, conveying said Smith ranch to the appellant, particularly describing it, and that said deed was witnessed by the defendant McComas, was a circumstance tending to support the evidence of the appellant. For if the forty acres in dispute which is conceded to be a part of the W. F. Smith ranch had been abandoned and turned over to McComas in March or April, 1903, why did McMurry convey the W. F. Smith ranch to appellant without excluding the forty acres in dispute? And why did the defendant McComas witness said deed of conveyance about a year after he claims to have taken possession of the disputed forty acre tract as his own? It seems to us that this is a strong circumstance supporting the testimony of the appellant, and is a circumstance that the appellant had a right to have placed before the jury.

There is a conflict in the evidence in this case, and if the fact that McMurry conveyed the Smith ranch to the appellant more than a year after he claimed to have turned the forty in dispute over to the defendant, and the deed witnessed by defenda...