Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-17
DECiSi0N


estate Of 7. c. Glow. deceased. to COM .
pol the execution of 2 deed to plain /
tiff for q triangular piece Of land mark
ed with three iron pins and less thai
enc acre in extent % described in the .
complaint. The uDcCntra3icte. testi- .
mony Of several Witnesses intr0ducaj .
by the plaintiff shows tnat Glow. n !
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 bCun5-
aries Of the parcel Of land mentioned, .
ct i" vert unon t'7e premises, mark
ed ana pointed cut the bCun 5aries II
the plaintiff, put him in possession AMI
accepted 2 Cow il payment. There
after plaintiff hauled and sold sand
from the pit exclusively and nis right
&c the same were expressly aclInoW-
lodged rQon 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 10 Whether
The proofs showed , sale Of he land on
st the request of the plaintiff fOund
that he purchaser the sand situate
uHon and in the sand hill described II
D1ainti~'s complaint and the exclusive
r:eut to take sand ther efr0m", tnlt
Cow 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 q Judgment in favor Of de-
PENDANTS for their costs and an order
overriding a motion for 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
Glow intended to sell the land in fee,
or only the sand, leaving the land for
hun or his estate when stripped of #,
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 10
relief to tnat extent In principle the
plaintiff has en- interest in the land
like the right to remove stone or cut
timber or maintain a roadway or other
easement, or like lease or term for
life or years, and although less than
freehold, the plaintiff. alter being plac-
ed in possession and making payment,
became entitled upon demand. to
conveyance to the extent CT his pur-
chase. which could be recorded AID
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 n af n~. II
IS: This legal title having passed to Ills
successors by operation of law, it is
incumbent upon them to convey it 20
plaintiff
Schroeder v Gemeinder. 10 New 367
Lake v. Lewis, Is New. "a.
PeweHv. Campbell. 20 New. 233.
l Tiffany Modern Law of Real Prop.
Sec. TO- f II
Thompson v. Smith, IS N. Y. so3
and cases there cited.
Kerr v. Day. IA Pa. St. H.
So Am. Dec 526 and annexation
Felch " Hooper, 119 Mass. Sc.
Masterson v. Pullen, 60 Ala. 146.
Wehn " Fall. So Neb. SAT.
Swepson V. Rouse. Is N. c. 81.
6 Am. R. 735.
Adams " Harris, At Miss. IA
Carson v. Mulvany. 40 Pa st. SO
Morgan v. Morgan, 2 Wheaton Us
U. 81, 302., $780,.
Massie v. Watts, Cranch. Jas.
Newton v. Bronson. 81 Am Dec 50.
W. u v. P. C. c. Co. 1877; Fed. p.
435.
5 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 IN
! der such circumstances as exist here,
| relief to that extent and not be forced
to further litigation.
That the plaintiff may recover less
i than the whole of that which he de
mands without being relegated to an
ether action is according to usual pra :
/ tice, and any other rule would tent
to multiplicity of suits and occasion
unnecessary delays and hardships
In Brogan V. Daughdrill, 81 Ala,
316, the bill averred contract for tn
sale of more than four hundred acre:
and the decree of the chancellor ey
:; forcing it as to eighty acres only wa
sustained, and it was said that it I
general rule of law and in eQuit
that a plaintiff may recover part onl
of what he claims.
In Drury " Conner, 6 Harris an
Johns 4SS cited in that opinion, th
. plaintiff claimed the conveyance :
I the whole of a piece of land, but til
!. proofs entitled him to an undivide
n one-fourth only, which was decreed
him.
In Vicksburg R. r. Co., v Ragsdal
: "a, Miss. 215; I'VE know of no ru
~ of equity which denies relief to par
e altogether because he has made "a,
claim as to part of it. In so
as he has shown title to relief to tn
extent should he be redressed."