Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-11
DECISION

This action was brought against til ,
defendant, West, as administrator, an
the other defendants as heirs, Of the
estate of B. G. Glow, deceased, to COM
pei the execution Of a deed TO plain
tiff for a triangular picce of land mark
ed with three iron pins and less thai
one acTo in extent IS described in me
comp'afnt. The uncontradicted testi-
mony OF several Witnesses introduced
by the plaintiff shows tnat GLOW. IN
the year 1901 and considerable time
before his desth, sold TO plaintiff
sand hill or sand pit which is iden-
teal with, or embraced in the bound
aries OF the parcel Of land mentioned,
- he went uDon the premises. mark
ed and pointed out the boundaries ID
the plaintiff, pat him in possession ami
accepted COW in payment. There
after plaintiff hauled and sold sand
from the pit exclusively and dis right
to the same were expressly acknow-
lodged upon different occasions Ly
Glow, who directed TO plaintiff. per-
sons applying for sand. No evidence
was offered by the defendants.
The court was in doubt as to Whether
the proofs showed sale of the land Dus
at the request Of the plaintiff fount
that che purchase. the sand situate
upon and in the sand hill described III
plaintiffs complaint and the exclusive
rigut to take sand therefrOm'', tnlt
Glow received and retained possession
of the COW and that prior 10 and long
after his death plaintiff was in posses
sion Of the property and taking sand
From a judgment in favor OF de
Pendants fcr their costs and an order
Overruling a motion for d new trial
this appeal is taken.
The burden being upon the plaintifT
10 es hlish clearly ar executed sac
and there being doubt as to whether
Glow intended to sell the land in fee.
or only the sand, leaving the land for
hlm or his estate when stripped Of It.
the court properly refused to enforce
a conveyance of the freehold &c plain
tiff. but it having been plainly indi
Gated bv the evidence and the court
having found that there was an exc
cuted sale of the sand by Glow %
the plaintiff. the latter was entitled -
relief to mat extent. In principle the
4 plaintiff has an interest in lue laQd
like the right to remove stone or cut
t'r'fo~ CT maintain roadway or other
/ easement CT lilyo q 7eose or torn f~~
! life or years and although less than
! freehold. tho rlaintiff. atter being Dlac-
ed in possession and making payment,
I became entitled upon demand. to
1 conveyance to the extent of his pur
chase, which could be recorded and
! which would give notice of his owner
ship. from Glow who held that part
1 of the title for him as trustee, the
same as Glow would have retained the
! whole title if the sale had been of the
! freehold (
This legal title having passed to Ais
| successors by operation of law, it IS
| incumbent upon them to convey it 70
plaintiff
Schroeder V. Gemeinder. 10 New. 567
Lake v Lewis Is New. o.
| Powell V. Campbell. 90 New. 23S.
| Tiffany Modern Law of Real Prop.
Sec. 10.
Tt mpson V Smith, 63 n. Y. 303
and cases there cited.
! Kerr V. Day. IA Pa. St. l12.
53 Am. Dec. 526 and annexation
! Felch V Hooper. 119 Mass. Sc.
Masterson V. Pullen, 60 Ala. LAG.
Wehn v Fall, SO Neb SAT.
SwepsOn v Rouse, 65 N c. "a.
J Am Z. 1856.
Adams V. Harris, Al Miss. 144.
Carson V. Mulvany. 40 Pa. ST IS
Morgan V Morgan. ? Wheaton u5
z. s., 302.
Massie V. Watts. 6 Cranch, 1.S
Newton V. Bronson. 81 Am Dec 50.
w. U. v. p C. c. Co. 1877; Fed. p.
435.
Cd To
aud cases cited Vol 1 id. 367
If the proofs had indicated the sale
! CT 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 en-
titled to an interest in. or a part of
the estate. quantity or amount of land,
money or personal property claimei
under the allegations and demand in
the complaint, he should be given IN
der 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 de
mands without being relegated to an
other action is according to usual prac
tice, and any other rule would ten(
to multiplicity of suits and occasion
unnecessary delays and hardships.
In Brogan V. Daughdrill, 81 Ala
316, the bill ayerred a contract for III
sale Of more than four hundred acres
and the decree of the chancellor er
8 forcing it as to eighty acres only wa
, sustained, and it was said that it !!
a general rule Of lazy and in equit
= that plaintiff may recover a part onl
i Of what he claims.
In Drury V. Conner, 6 Harris an
Johns 4SS cited in that opinion, tn
: plaintiff claimed the conveyance
II the whole of piece of land. but tn
b. proofs entitled him to ar undivide
/, one-fourth only, which was decreed
him.
In Vicksburg r. R. Co, " Ragsdal
e a. Miss. 215; I'VE know Of no ru
X of equity which denies relief to par
"a altogether because he has made "a:
claim as to a part of it.. In so f
- bo hoe chnwp till 70 roI;oP 70 III