Smith v. Curtice

102 N.W. 241, 73 Neb. 167, 1905 Neb. LEXIS 34

• Court: Nebraska Supreme Court
• Decided: January 18, 1905
• Docket: No. 13,699
• Status: Published

Opinions

Oldham, C.

This was a suit in ejectment. Plaintiff in the court below, who is also plaintiff in error in this court, alleged, in substance, that she was the owner of the north half of the northeast quarter of section 32, township 8 north, of range 21 west, Gosper county, Nebraska, and that the defendant was the owner of the southeast quarter of section 29 in the same township, range and county; that defendant is in possession of a strip of land owned by plaintiff, which is described by metes and bounds, and which is a part of plaintiff’s half section. Defendant answered, admitting that he was the owner of the southeast quarter of section 29, as alleged in plaintiff’s petition, and denying each and every other allegation of the petition. There was a trial to a jury in the court below, verdict for defendant, judgment on the verdict, and plaintiff brings error to this court.

This contest apparently arose over a dispute as to the location of the original government corner a't the northeast corner of section 32 and was tried by plaintiff on the theory that this was the only issue tendered by the pleadings. But defendant by his general denial put in issue both plaintiff’s’ title and right to the immediate possession of the land in dispute; consequently, it devolved on plaintiff to recover on the strength of her title, and the only evidence contained in the bill of exceptions tending to support plaintiff’s claim to the north half of the northeast quarter of section 32 is a sheriff’s deed from F. F. Dunn, as sheriff of Gosper county, dated the 11th day of March, 1898, conveying to plaintiff all the right, title and interest of William Shryer and Mary E. Shryer in and to said premises, under an order of sale in a mortgage foreclosure proceeding. But there is no evidence introduced to establish any title in William Shryer and Mary E. Shryer to the land at the time of- this judicial sale. Under this state of the record, plaintiff has not shown either title or right to the immediate possession of the premises in controversy. Consequently, the verdict rendered and the judgment entered by the trial court are the only ones that could be sustained under the evidence, and, this being the case, we are relieved from reviewing any of the alleged errors called to our attention in the brief of plaintiff in error •with reference to either the giving or the refusing of instructions, or the admission or exclusion of evidence.

1. Instructions: Review. Action of tlie trial court in giving and refusing instructions examined, and held not prejudicial. 2. Evidence: Review. Action of tlie trial court in admitting evidence examined, and held not prejudicial.

We therefore recommend that the judgment of the district court be affirmed.

Ames and Letton, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.