Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-13
DECISION


estate Of B. G. Glow, deceased, to com
pei the execution of deed to plain
tiff for 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-
mony of several witnesses introduced
by the plaintiff shows that Glow, IN
the year 1901, and considers BILE time
before his death, sold to plaintiff a
sand hill or sand pit which is iden-
teal with, or embraced in the bOuni-
aries of the parcel of land mentioned,
nat he went upon the premises, mark
ed and pointed cut 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 Jy
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 ous
at the request of the plaintiff founr
that he purchaser the sand situate
upon and in the sand hill described II
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
Overruling a motion for a 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 It,
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 mat extent. In principle tle
plaintiff has an interest in Ine land
like the right TO remove stone or cut
timber CT m6intHir ? roadway or 9th or
easement. or Ike a 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
conveyance to the extent of his pur-
chase, which coul0 be recorded aud
which would give notice Of his owner
shin from Glow who held that part
of the title for him as trustee the
same as Glow would have retained the
-hn1 i'll no sol 1,oI Of f1,.,
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. 367
Lake V. Lewis, IS New. a.
Powell v Campbell. 90 Ney e33
l Tiffany Modern Law of Real Prop
Sec 10
TT mpson V. Smith. GO N. Y. 303
and cases there cited.
Kerr V. Day. IA Pa. St. H.
50 Am. Dec. $40 and annexation
Felch V. Hooper. 119 Mass Sc
Masterson V. Pulien. 62 Ala. 146.
Wehn V Fall. SO Neb. SAT.
Swepson V Rouse. s. N c. "a
6 Am R. 735.
Adams V. Harris. A Miss LA.
Carson V. MuIvany. E9 Pa. ST. IS
Morgan V. Morgan. ? Wheaton Us
u s., 3O2
Nassie v Watts. Cranch, 1tS.
Newton V Bronson 81 Am. Dec. 50.
w. U. V. F. C. c. Co. 1871; Fed. p.
435.
5 Pom. Eq. 6 ED Sec. u 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 III, 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 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 re de
mands without being relegated to an.
[ other action is according to usual pra ?
! 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 averred a 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 !:
a general rule of law and in equit'
that plaintiff may recover a part ont
of what he claims
IN Drury V. Conner, 6 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 I
him.
In Vicksburg r. r. Co, v. Ragsdal
81. Miss. 215; I'VE know of no rul
of equity which denies relief to a part
, | altogether because he has made sa,s
claim as to part of it. In so f.
as he has shown title to relief to tn;
extent should he be redressed''