Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-10
UESiS.CN

pei the execution Of . decd TO plain
tiff fora triangular piece of land mark
ed with three iron pins and less thai
one acre in extent IS described in the
complaint. The uncontradicted testi-
mOnT of several witnesses introduced
by the plaintiff shows that Glow. IN
the year 1901, and a considerable tine
before his death, sold to plaintiff a
sand hill OR sand pit which is iden-
tical with. or embraced in the bound
aries Of the parcel Of land mentioned,
"a lre went uDon the premises, mark
ed and pointed out the boundaries 10
the plaintiff, put him in possession and
accented a COW in payment. There
after plaintiff hauled and sold sand
from the pit exclusively and mis- right
to the same We're expressly acllnoW-
lodged upon different occasions Jy
Glow, who directed 20 plaintiff. per
sons applying for sand. Nc evidence
was offered by the defendants
The court was in doubt as to whet4er
the proofs showed a sale of the land on
at the request of the plaintiff fOund
that he purchaser the sand situate
upon and in the sand hill described II
plaintiff complaint and the exclusive
rig to take sand therefrOm" that
Glow received and retained possession
Of the COW and that prior 10 and long
after his death plaintiff was in posses
SIGN Ct the property and taking sand.
From 4 judgment in favor of de-
PENDANTS Ter their costs and an order
overriding motion for q new trial
this appeal IS taken.
the burden oeirg upon the nlainCT
10 establish clearly an 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
him or his estate when stripped of Il.
the court property refused to enforce
a conveyance Of The freehold to plain
tiff. bur il having been plainly indi-
Gated ~ the evidence and the court
having found that there was an exc
cuted sale Of the sand by Glow %
the plainuf. the latter was entitled 10
relief 10 jlat extent. In principle taa
plaintiff has an interest in Tie land
like The right 10 remove stone or cut
+ir-'>o-' C Maintain ROADWAY or other
eesomert or Ike Lease o. tern, -
life or years. and although less than
freehold the Ds3iEtiT. after being plac-
ed in possession and making payment,
became entitled upon demand. to
convey ance TO the extent Of his pur-
chase. which could he recorded and
which would give notice Of his owner
ship. from Glow who held that part
of the title for him as a 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 -
plaintiff
Schroeder V. Gemeinder. 10 New. 367
Lake V. Lewis. Is New. %.
PoweH V Campbell. 20 Nev 233.
| Tiffany Modern Law Of Real Prop.
Sec 10.
Tt mpson v. Smith. IS n. Y. 3'3
and cases there cited.
Kerr V Day. i Pa St. 112.
53 Am. Dec 526 end annexation.
Fetch V. Hooper. 119 Mass 81
Masterson V. PulIen. CO Ala. 146
Wehn V. Fall s. Neb. SAT.
SwnDsCn Y. Reuse, s. n. c. "a.
Am. +. 1875.
Adams Y Harris. Il Miss IA.
Carson V. Mulvany. ~ Pa ST IS
Morgan V Morgan, Wheaton Is
U. s.. 800
Massie V. Watts. Cranch. 14S
Newton V. Bronson, 81 Am. Dec. 81
w. U. V. p. c. G. Co. 1877; Fed. p.
435.
5 Pom. Eq. g ED Sec. II to IS
and cases cited VoI. l id. 367
It the proofs had indicated the So g
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 q 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 I'M
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 prao-
tice, and any ether rule would tend
to multiplicity Of suits and occasion
In Brogan V. Daughdrill 81 Ala
BIG. the bill ayerred contract for The
! sale Of more than four hundred acres
| and the decree of the chancellor en-
! forcing it as to eighty acres only wa.
sustained. and it was said that it i
a general rule of law and in equit'
! that pl7intiff may recover a part ont
of what he claims.
| In Drury V. Conner, 6 Harris an,
Johns 48S cited in that opinion, tn
plaintiff claimed the conveyance :
the whole of piece of land. but tn
proofs entitled him TO an undiyide
one-fourth only, which was decreed I
him.
In Vicksburg r. r. Co., v. Ragsdal
"a. Miss. 215; I'VE know of no rul
of equity which denies relief to par.
altogether because he has made ra,-
claim as to a part of it. In so fl
as he has shown title to relief to tn;
extent should he be redressed"