Brandon v. West

By the Court, Talbot, J.: This action was brought against the defendant West as administrator, and the other defendants as heirs, of the estate of B. G. Clow, deceased, to compel the execution of a deed to plaintiff for a triangular piece of land, marked with three iron pins and less than one acre in extent, as described in [506] the complaint. The uncontradicted testimony of several witnesses introduced by the plaintiff shows -that Clow in the year 1901, and a considerable time before his death, sold to plaintiff a sand hill or sand pit which is identical with or embraced in the boundaries of the parcel of land mentioned; that he went upon the premises, marked and pointed out the boundaries to the plaintiff, put him in possession, and accepted a cow in payment. Thereafter plaintiff hauled and sold sand from the pit exclusively, and his right to the same was expressly acknowledged upon different occasions by Clow, who directed to the plaintiff persons applying for sand. No evidence was offered by the defendants. The court was in doubt as to whether the proofs showed a sale of the land, but, at the request of the plaintiff, found that he "purchased the sand situated upon and in the sand hill described in plaintiff’s complaint and the exclusive right to take sand therefrom”; that Clow received and retained possession of the cow, and that prior to and long after his death plaintiff was in possession of the property and taking sand. From a judgment in favor of defendants for their costs, and an order overruling a motion for a new trial, this appeal is taken. The burden being upon the plaintiff to establish clearly an executed sale, and there being a doubt as to whether Clow intended to sell the land in fee, or only the sand, leaving the land for him or his estate when stripped of it, the court properly refused to enforce a conveyance of the freehold to plaintiff, but it having been plainly indicated by the evidence and the court having found that there was an executed sale of the sand by Clow to the plaintiff, the latter was entitled to relief to that extent. In principle, the plaintiff has an interest in the land like the right to remove stone or cut timber or maintain a roadway or other easement, or like a lease or term for life or years, and, although less than freehold, the plaintiff, after being placed in possession and making payment, became entitled upon demand to a conveyance to the extent of his purchase, which could be recorded, and which would give notice of his ownership from Clow, who held that part of the title for him as a trustee, the same as Clow [507] would have retained the whole title if the sale had been of the freehold. This legal title having passed to his successors by operation of law, it is incumbent upon them to convey it to plaintiff. (Schroeder v. Gemeinder, 10 Nev. 367; Lake v. Lewis, 16 Nev. 94; Powell v. Campbell, 20 Nev. 233, 20 Pac. 156, 2 L. R. A. 615, 19 Am. St. Rep. 350; 1 Tiffany, Modern Law of Real Prop. 10; Thompson v. Smith, 63 N. Y. 303, and cases there cited; Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526, and annotation; Felch v. Hooper, 119 Mass. 52; Masterson v. Pullen, 62 Ala. 146; Wehn v. Fall, 55 Neb. 547, 76 N. W. 13, 70 Am. St. Rep. 397; Swepson v. Rouse, 65 N. C. 34, 6 Am. Rep. 735; Adams v. Harris, 47 Miss. 144; Corson v. Mulvany, 49 Pa. 88, 88 Am. Dec. 485; Morgan v. Morgan, 2 Wheat. (15 U. S.) 302, 4 L. Ed. 242; Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181; Newton v. Bronsin, 67 Am. Dec. 89; W. U. Tel. Co. v. Pittsburg, C., C. & St. L. Ry. Co. (C. C.) 137 Fed. 435; 5 Pom. Eq. Jur. 3d ed. secs. 12-16, and cases cited, volume 1, Id. 367.) If the proofs had indicated the sale of sand on land different from that described in the complaint, there would have been a fatal variance; but when they establish that the plaintiff is entitled to an interest in or a part of the estate, quantity, or amount of land, money, or personal property claimed under the allegations and demand in the complaint, he should be given, under such circumstances as exist here, relief to that extent, and not be forced to further litigation. That the plaintiff may recover less than the whole of that which he demands without being relegated to another action is according to usual practice, and any other rule would tend to a multiplicity of suits,‘and occasion unnecessary delays and hardships. In Bogan v. Daughdrill, 51 Ala. 316, the bill averred a contract for the sale of more than four hundred acres, and the decree of the chancellor enforcing it as to eighty acres only was sustained, and it was said that it is a general rule at law and in equity that a plaintiff may recover a part only of what he claims. In Drury v. Conner, 6 Har. & J. 288, cited in that opinion, the plaintiff claimed the conveyance of the whole of a piece [508] of land, bnt tbe proofs entitled him to an undivided one-fourth only, which was decreed to him. In Vicksburg R. R. Co. v. Ragsdale, 54 Miss. 215: "We know of no rule of equity which denies relief to a party altogether, because he has made a false claim as to part of it. In so far as he has shown title to relief, to that extent he should be redressed." The sand is a part of the land for which the plaintiff seeks a deed in his complaint the same as ore, marble, or stone before removal is a part of the realty. (State v. Berryman, 8 Nev. 268; Kingsley v. Holbrook, 45 N. H. 319, 86 Am. Dec. 173; Stevenson v. Bachrach, 170 Ill. 256, 48 N. E. 327; State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224; Cary v. Daniels, 8 Metc. 480, 41 Am. Dec. 532; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; 2 Blackstone Com. 18; Lime Rock R. R. Co. v. Farnsworth, 86 Me. 130, 29 Atl. 957.) The defendants were aware that the plaintiff demanded a conveyance of the whole of the land, and they could have avoided costs by tendering a deed for that part of it comprising the sand, and the right of its removal, in the same way that immunity from costs may be secured by an offer to allow judgment for a less sum or estate, or for a smaller quantity of land or personal property, than that demanded in the complaint. In Schroeder v. Gemeinder, Justice Hawley, speaking for this court, said: "We are satisfied that the objection urged, upon the ground that the premises described in the deed were not the same as described in the lease, is not well taken, for the reason that no such objection was made at the time the deed was presented. If that was the only objection, the respondent ought to have so stated at the time of the tender. But, in any view, this objection could only be urged upon a question of costs, and not to defeat appellant’s rights. Courts of equity ought to determine the rights of the parties according to the broad principles of justice and fair dealing, and not by the technical and refined distinctions of the law.” The judgment and order are reversed, and the district court is directed to decree the execution on the part of the [509] defendants of the proper deed conveying to the plaintiff the sand on the premises described in the complaint, and the exclusive right to remove the same, to which he is entitled as shown by the uncontradicted evidence and findings, with his costs, if the proper memorandum thereof is filed within two days after the entry of the decree under the usual practice and section 3581 of the Compiled Laws. Pursuant to the motion of respondents the items of expense in the lower court are striken out of the cost bill filed here, but the reporters’ fees of $34, for transcribing notes for the record on appeal, and the cost of typewriting briefs, are allowed to stand under rule VI (p. 6 of this volume) and the decision in the recent case of Candler v. Ditch Co., 28 Nev. 422, 82 Pac. 458. NORCROSS, J.: I concur.