Yager v. Larsen

Paine, J. We find no evidence either prior or subsequent to the motion for a nonsuit, to show any ouster by the defendant Johanna Larsen. There is nothing to- show that she ever did anything herself, or authorized anything to be done, in respect to taking or holding possession of the disputed land. As we understand the evidence, it does not appear that the tax deed to her includes this land; so that the recording of that deed did not amount to any assertion of title by her to the portion here claimed by the plaintiff. There is nothing else connecting her in the remotest degree with the ouster, if there was one, except the proof of her [188] husband’s testimony in a suit before a justice of tbe peace, that be built a fence and held tbe land as agent for bis wife. It does not appear that she was a party to that suit, and what her husband stated ’there as a witness was not admissible evidence against her in this suit, for tbe purpose of charging her with an ouster, if it bad been objected to. It does not appear that any objection was made; and therefore tbe evidence may be considered for what it is worth. But giving it all tbe effect that can justly be claimed for it, it is not of such a character as to charge her in this action. Tbe plaintiff claims only an undivided two-thirds of tbe tract described in bis complaint. If Mrs. Larsen owned tbe other undivided third,' which may be assumed, her bus-band’s building a fence around tbe property owned in common, as her agent, would not be such an exclusion of tbe other tenants in common as would authorize them to maintain ejectment. Assuming that be said he occupied tbe land as agent for bis wife, according to tbe “ impression” of Forbes, tbe justice of tbe peace, yet that statement does not show that be claimed to occupy the whole tract to tbe exclusion of others who might be joint owners, or that be asserted her claim in any manner inconsistent with their rights. Furthermore, it cannot be inferred from those statements that she bad ever given any directions in regard to tbe occupancy of this particular portion, or had ever assented to any acts that be may have claimed tbe right to do there as her agent. Tbe statements are entirely consistent with tbe thebry that she may have had an interest in tbe tract, as to which be was her agent, and that then, of bis own motion, be committed these acts claiming to do. them as her agent. If that was so, and these acts went beyond any right she bad, and amounted to an ouster of tbe plaintiff, she would not be responsible, not having directed or ratified them. [189] These considerations, in connection with the plaintiff’s own statement, that the husband expressly claimed to him to occupy under a tax title owned by Stephen Allen, convince us that there was not evidence sufficient to charge the wife with an ouster. If there was an. ouster, it was by the husband, and the action should have been brought against him alone, so far as appears from this evidence. The motion for a nonsuit should have been granted. By the Court. — The judgment is reversed, with costs, and the cause remanded for a new trial.