Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-09
DECISION

ueIeHUanl, west, as ADMINISTRATOR, an I
the other defendants as heirs, of the
estate of B. G. Glow, deceased, to COM
pei the execution Of deed to plain
tiff fer triangular piece of land mark
ed with three iron pins and less thai
one acre in extent rs described in the
com plant. The uncontradicted testi-
mony Of several witnesses introduced
by the plaintiff shows that Glow. IN
the year 1901. and a considerable time
before his death, 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,
lat he went upon the premises mark
ed and pointed out the boundaries to
the plaintiff, put him in possession and
accepted 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 ty
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 Oh.
at the request of the plaintiff fOunn
that he purchased 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 judgment in favor of de-
PENDANTS for their costs and an order
overruling a motion for new trial,
this appeal is taken.
The burden being upon the plaintiff
to establish clearly an executed safe
and there being a 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 1t,
the court properly refused to enforce
a conveyance of the freehold to plain
tiff, but it having been plainly indi-
Gated By the evidence and the court
having found that there was an exc
cuted sale of the sand by Glow 20
the plaintiff the latter was entitled TO
relief to that extent. In principle the
plaintiff has an interest in lue land
like the right to remove stone or cut
timber or maintain roadway or other
easement or like 2 lease or tern, 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
conveyance to the extent of his pur-
chase, which could be recorded and
which would give notice of his owner
shin, from Glow who held that part
Of the title for him as a trustee the
4,
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 ~
plaintiff
Schroeder " Gemeinder, 10 New 367
Lake v. Lewis, Is New "a.
Powell " Campbell, 90 New. 233.
Tiffany Modern Law of Real Prop.
Sec TO-
Thompson v. Smith, GO N. Y. 3O3
and cases there cited
Kerr v. Day. IA Pa. St. 112.
53 Am. Dec. 526 and annexation.
Felch v Hooper. 119 Mass. Sc.
Masterson v. Pullen, g. Ala. 146.
Wehn v. Fall. SO Neb. SAT.
Swepson V Rouse, 65 n. c. "a.
Am. R. 1855.
Adams V. Harris, Al Miss. IA.
Carson " Mulvany. 40 Pa. St. 50
Morgan v Morgan, Wheaton Q5
u 81, 302.
Massie V. Watts, Cranch. 14S.
Newton v. Bronson, 81 Am Dec 50.
w. wv. F. C. C. Co. 1877: Fed. p.
435
Pom. Eq. 6 ed Sec. II to IS
and cases cited Vol. l 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 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 in
the complaint, he should be given I'M
i'der such circumstances as exist here,
relief to tfat 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 tend
| to multiplicity Of suits and occasion
unnecessary delays and hardships.
In Brogan V. Daughdrill, 81 Ala
316, the bill ayerred a contract for th'
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
general rule of law and in eqult
that plaintiff may recover part ont
of what he claims.
In Drury " Conner, Harris an
Johns 4SS cited in that opinion, tn
plaintiff claimed the conveyance
the whole of a piece of land, but tn
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 rul
I Of equity which denies relief to par
: altogether because he has made "a.
claim as to part of it. In so Fl
as he has shown title to relief to tn