Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-12
DECISION

This action was brought against TIL l.,
defendant, West, as administrators, ami
the other defendants as heirs, of the
estate of B. G. Glow, deceased. to COM
pei the execution OF q deed to plain
tiff for a triar gular piece of land mark
ed with three iron pins and less thai
one acre in extent IS described in the
complaint. The uncontradicted testi-
monv of several witnesses introduced
by the plaintiff shows that GLOW, IN
the year 1901, and a considerable time
before his death, sold to plaintiff a
sand hill or sand pit which is iden-
teal with. or embraced in the bound
aries of the parcel Of land mentioned,
lat be went uDon the premises, mark
ed and pointed out the boundaries to
the plaintiff, put him in possession and
accepted a COW in payment. There
after plaintiff hauled and sold sand
from the pit exclusively and mis- right
to the same were expressly acknow
lodged upon different occasions by
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 on.
that The purchase. the sand situate
upon and in the sand hill described IL
plaintiffs complaint and the exclusive
right to take sand therefrom", That
Glow received and retained possession
of the cow and that prior to and long
after his death plaintiff was in posses
sion of the property and taking sand.
From a judgment in favor Of de-
PENDANTS for their costs and an order
Z Overruling motion for new trial
this appeal is taken
The burden being upon the plaintiff
to establish clearly an executed SAFE
ard there being doubt as to whether
Glow 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 plain
tiff, but it having been plainly irdi-
Gated by the evidence and the court
having found that there was an exc
cujed sale of the sand by Glow 20
the plair ,iff. the latter was entitled 10
relief to that extent In principle the
plaintiff he's an interest in Ine land
like the right to remove stone or cut
III ~ ~ TX Il liII = EtdtlWdN OF ClNHE
easCme rt CT IKE lease or term For
! life or years, and although less than
! freehold. the Plaintiff. after being plac-
ed in possession and making payment,
became entitled upon demand to a
! conveyance to the extent of his pur-
! chase. which cculd be recorded aud
! which would give notice of his owner
! ship. from Glow who held that part
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 lis
| successors by operation of law, it is
/ incumbent upon them to convey it u
! plaintiff
Schroeder v Gemeinder. 10 New. 367
Lake V. Lewis, 16 New. "a
Powell V. Campbell. 90 New 233
l Tiffany Modern Law of Real Prop
Sec 10.
Thompson V Smith, 65 n Y. s0}
and cases there cited
Kerr V. Day. Ia Pa. ST. IL.
SO Am Dec 526 and annexation.
Felch V. Hooper. 119 Mass. So
Mastersop Y. Pullen, GO Ala. 46
Wehn v Fall. SO Neb. SAT
Swepson V Rouse. s. N C. "a
J Am. r. 735.
Adams V. Harris. AZ Miss 144
Carson V. Mulvanv. 80 Pa ST. IS
Morgan V. Morgan. Wheaton U5
U. 81, 302.
Massie V. Watts. Cranch. 14S
Newton v Bronson. g. Am. Dec. SO
w. U. v. 2. c. c. Co. 1877; Fed p.
435.
Pom. Eq. 6 ed Sec. Il to &c
and cases cited Vol. 1 id. 367
I 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 en-
titled 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 ir
the complaint, he should be given IN
der such circumstances as exist he:e
relief to that extent and not be force
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 pra
| llce, ana any OIner rule would TEN
to multiplicity of suits and occasi0
unnecessary delays and hardships
In Brogan v. Daughdrill, 81 Ala
316, the bill averred a contract for tn
sale of more than four hundred acre:
and the decree of the chancellor Ell
5 forcing it as to eighty acres only wa
, sustained, and it was said that it
a general rule Of law and in equit
that plaintiff may recover part onl
l of what he claims.
In Drury v. Conner, 8 Harris an
Johns 4SS cited in that opinion, tt
. plaintiff claimed the conveyance
Il the whole of piece of land. but tt
!. proofs entitled him TO an undivide
= one-fourth only, which was decreed
him.
In Vicksburg r. r. Co., v. Ragsdal
+ 81, Miss. 215; I'VE know of no ru
r of equity which denies relief to par
e altogether because he has made "a,
claim as to part Of it. In so f
as he has shown title to relief to tn