Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-18
DECISION


defendant, West. as administrator. AMI
the other defendants as heirs, of the
estate OF 3. G.. Glow, deceased, TO COM
nel the execution of \ deed to plain
tifs fer triangular piece of land mark
ed with three iron pins and less thai
one acre in extent - described in the
complaint The unccptradicted testi-
mony of several Witnesses introduced
by the plaintiff shows taat Glow. IN
the year 1891, and 2 considerable time
before his death. sold to plaintiff a
sand hill or sand pit which is iden-
teal with. or embraced in the boUnl
aries of the parcel e-@Iand mentioned.
lat he went UDon the lhemises, mark
ed and pointed out the boundaries to
The plaintiff, put him in possession and
accepted q COW in payment. There
after plaintiff hauled and sold sand
from the pit exclusively and ais right
to he same were expressly acknOW
lodged upon different occasions ~
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 or
at the request Of tie plaintiff fOunr
that he purchaser the sand situate
upon and in the sand hill described II
plaintiffs complaint aud 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 &C.
r., rbo.- TAr
oyerruling a motion fer 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
hlm or his estate when stripped of It
the court properly refusea to enforce
q, conveyance Of The freehold to plain
tiff. but it having been plainly indi
! Gated hT the evidence and the court
having found that there was an exc.
cuted safe of the sand by Glow 20
the plaintiff. the latter was entitled II
relief to that extent In principle the
plaintiff has an interest In lne land
like the right to remove stone or cut
tiulDSI Ut 1ntdlH q lCdCNdy VI OtDSl
easement. or like lease or term for
life or years, and although less than
freehold. the piaintiff. alter being plac-
ed in possession and making payment,
became entitled upon demand to a
conveyance to the extent of his pur-
chase. which could be recorded id
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 Ills
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. "a.
Powell V Campbell. 90 New. 233
l Tiffany Modern Law Of Real Prop.
Sec. 10.
Thompson V. Smith. So n Y. 303
and cases there cited.
Kerr V. Day. II Pa St. 112
So Am. Dec 526 and annexation.
Felch V. Hoopcr. 119 Mass. Sc.
NastersOn Y. Pullen. c. Ala. l46.
Wehn V Fail. % Neh. SAT
SwepsOn Y. Rouse. G5 n. C. 81.
Am. R. 735
Adams V. Harris, Il Miss IA.
Carson v Nuiyanv. ~ Pa St So
Morgan V Morgan, 2 Wheaton Is
L. s., 500
Massie V. Watts. Cranch. 14S.
Newton Y. Bronson, 81 Am. Dec. 50.
w. U. V. T. C. c. Co. 1877; Fed. p.
435.
Pom. Eq. g ed Sec. u to rs
and cases cited NOi. ! id. 367
If the proofs had indicated the sac
Of sand on land different from that
described il the complaint there would
have been q fatal variance. but when
they establish that the plaintiff is en-
titled to an interest in. or part OF
the estate quantity or amount of lani
money or personal property claimef
under the allegations and demand IL
he complaint, he should be given IN
der such circum stances as exist hece.
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 ralegated to an
| other action is according to usual prac
| 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 bin ayerred contract for III
sale of more than four hundred acres
and the decree CT the chancellor er
forcing it as TO eighty acres only wa
sustained. and il was said that it I
general rule of law and in equit
that 2 plaintiff may recover a part oni
Of what he claims.
In Drury v Conner, Harris an
Johns 4SS cited in that opinion, til
plaintiff claimed the conveyance I,
the whole Of a niece of land. but til
proofs entitled him 20 an undivide
one-fourth only, which was decreed I
him.
In Vicksburg r. R. Co, v Ragsdal
"a. Miss. 275; I'VE know of no rul
: Of equity Which denies relief to a par
, | altogether because he has made fai.
claim as to part of it. In so f.