Turner v. Gonzales ( 1901 )

Townsend, C. J.

The appellant has filed 14 specifications of error, but discusses them under 7 heads. Under the first head the error alleged is that the court admitted verbal testimony of the transfer of the property, when in her complaint she alleges a written instrument. The testimony is clear that the appellee received this tract of land by gift from her mother, G. G. Bellstedt, and entered into and took possession of the same on March 1, 1891. The court permitted the foregoing verbal testimony, but excluded the gift deed of that date, which is as follows: “March 1, 1891, Muskogee, I. T. I this day give to Lula B. Gonzales a piece of land south of log house, running east of Gibson road, taking one acre off fronting Gibson road. G. 0. Bellstedt. ” In 2 Devi, Deeds, § 1012, it is said: “It is not essential to the validity of a deed that the description should be by boundaries, courses, or distances, or by reference to monuments. If the description is general, the particular subject-matter to which the description applies may be ascertained by parol evidence, and the deed will not be held void for uncertainty, if, with the aid of such evidence, the land intended to be conveyed can be located. ” It is clear that the foregoing instrument intended to give a piece of land to the appellee; that it was “south of log house, running east of Gibson road, taking one acre off fronting Gibson road,” and dated March 1, 1891, Muskogee, Ind. T. If parol evidence could have ascertained the particular subject matter of this gift, then it should not Jiave been held void for uncertainty. The evidence admitted by the court very conclusively did this, and we think it should have been admitted. Then no error could have been assigned for the admission of the verbal testimony. No objection is raised to the reformed gift deed dated April 25, 1898. This also disposes of the error alleged under the second head, which is as follows: “The district court erred in overruling appellant’s objection to the introduction of testimony by appellee which did not correspond to the allegations in her complaint.’’

Under the third head the error alleged is the refusal of the court to allow the introduction of two affidavits attached to a bill for injunction which appellant filed, and the orders made in that injunction suit. The affidavits were ex parte, and made by strangers to this suit, and were in no way binding upon the appellee. The orders made in said injunction suit were not pleaded as a bar to this suit, and the refusal of the court to admit same in this case was proper.

Under the fourth head the errors alleged are the refusal of the court to allow appellant to introduce what purported to be a bill of sale from Mrs. 0. C. Bellstedt to P. N. Blackstone of the property in question, of date December 7, 1891, and the subsequent transfer of same by Blackstone to Turner and Bozeman, of date March 30, 1896, and the refusal of the court to allow appellant to testify that Mrs. Bellstedt, subsequent to the time the said bill of sale purported to be executed, acknowledged to appellant that she had signed the same. It certainly could not bind appellee if Mrs. Bellstedt made such a statement to appellant when appellee was not present, and therefore its admission was properly refused. The signing and execution of the purported bill of sale was not proven by any one except as the certificate of the notary may tend to show its execution. But suppose it was signed, acknowledged, and delivered to Blackstone by Mrs. Bellstedt on December 7, 1891, what title did Mrs. Bellstedt have to convey? She had already given this piece of land away to appellee on March 1, 1891,. and the testimony is undisputed that appellee took possession of same, and had held it for some months before the bill of sale to Blackstone was signed. The appellee having taken actual possession of the land after the gift to her by her mother, this gift became absolute, and the land could no longer be alienated or controlled by C. C. Bellstedt, or by any one else claiming under C. C. Bellstedt by conveyance made subsequent .to the transfer to the appellee. . 8 Am. & Eng. Enc. Law, p. 1309; 2 Kent, Comm. p. 438; Attorney General vs Merrimack Mfg. Co., 14 Gray, 586; Grover vs Grover, 24 Pick. 261, 35 Am. Dec. 319; Nolen vs Harden, 43 Ark. 307; Brantley vs Cameron, 78 Ala. 72.

Under the fifth head the errors assigned are that the court erred in instructing the jury to return a verdict for appellee, and to assess her damages at the rental value of the premises for the time appellant had been in possession, and in instructing the jury to return a verdict in favor of appellee for the buildings and improvements upon said premises. There can be no error in the court’s instructions in this respect, unless the appellant, believing himself to be the owner under color of title, had peaceably improved said piece of land. The testimony shows that appellee had built a fence around this land, and during one year made a crop of corn on the land, and had at one time instituted a suit to recover the land, and at one time had the Indian agent stop the appellant from cutting a fence, and appellant at one time filed an injunction suit against appellee. It thus appears there was continually a quarrel as to the possession, and under the evidence we do not think that appellant has shown that he peaceably improved said land.

Under the sixth head the error alleged is the refusal of the court to instruct on the statute of limitations. It appears that before the expiration of five years from the date the purported bill of sale from Mrs. Bellstedt to Blackstone was executed, and under which appellant claims to have entered into possession, the appellee had instituted a suit to recover possession of these premises; that she subsequently took a nonsuit in that action, but before the expiration of one year from that time instituted this action. This she had a right to do. Mansf. Dig. § 4497; Ind. T. Ann. St. 1899, § 2964. And, as is shown supra, the appellant has never, since the land was transferred to appellee on March 1, 1891, enjoyed the continuous and exclusive possession required by the law for a length of time sufficient to bar the appellee’s right of recovery. Newell, Ej. pp, 723, 730, 735.

Under the seventh head the error alleged is the holding of the court that there was nothing in the case except the assessment of damages for the detention of the property. It is our judgment that the court ruled correctly, except in one particular, and that, as heretofore explained, did not injure appellant, and therefore the case should be and is affirmed.

Gill, Clayton, and Raymond, JJ., concur.