Sullivan v. Dunphy , 4 Mont. 499 ( 1882 )

Galbraith, J.

This is an action of ejectment to recover the possession of a lot in the city of Helena.

The trial was by jury. Issue was joined upon the question of title in the plaintiff from the United States, through the probate judge as trustee, etc., and other intervening conveyances; upon questions of title in the defendant from the same source also, through intermediate conveyances; upon the question of quiet, lawful and exclusive possession by the plaintiff and her predecessors in interest for a period longer than that prescribed by the statute of limitations then in force, although the statute itself is not mentioned in the allegation; and .upon the question of adverse possession by the defendant under claim of right or title for a period of more than ■five years, being the period prescribed by the statute of limitations now existing.

In our view of the case, questions in relation to all the .issues, except that of the possession by the plaintiff, as ■above stated, may be dismissed from our consideration and our inquiry confined to that alone.

The jury, in their special findings, say that, on the 2d •day of August, A. D. 1870, one Patrick McCann conveyed the premises in controversy, by deed, to the plaintiff; that on that day the plaintiff entered into-actual occupation thereof under the deed, and that she-continued in the actual occupancy of the premises from that date until October the 4th, 1877.

Also in relation to the special issue presented: “ Who-was in possession of the said lot from March, 1874, to-March, 1879 ? ” the jury found that the plaintiff was in possession from March, 1874, till October, 1877, and the” defendant from October 4, 1877, till March 1, 1879.

The jury also found that none of the predecessors in interest of the defendant entered into the actual, open, notorious and exclusive possession of the premises, adversely to the plaintiff, prior to the month of October, 1877. The deed from P. McCann to Ellen Sullivan, dated August 2, 1870, was offered without objection. And the testimony in relation to actual occupation and possession by the plaintiff was sufficient to support the above findings. There was a general verdict for the plaintiff.

The appellant averred and offered in evidence upon the trial, as the inception of his title, a deed from the probate judge to one Henry A. L. Tanner, to the premises in controversy, made the 22d day of February, 1873. The jury were fully instructed as to what constituted adverse possession under the statute of limitations, and the appellant does not complain of any error, or indicate any objection to such instructions.

According to the above findings and general verdict under the instructions of the court, the jury will be presumed to have found that the plaintiff took possession of the premises in controversy under a claim of right or title, and was in possession of the same under such claim of right or title when the deed from the probate judge to Tanner, under which appellant claims, was made. The; jury found expressly that the defendant Tanner was not-in possession of the premises until the 4th of October, 1877. The plaintiff therefore had the adverse possession of the property from the 22d day of February, 1873, until the 4th day of October, 1877, being a period of more than three years. Prior to the 22d day of February, 1873, and up till the 1st day of August, 1877, title by means of adverse possession, under the statute of limitations, was acquired, in three years.

We are warranted, therefore, in. concluding from the special findings, general verdict and instruction of the court in relation to the acquirement of title by adverse possession, to which no specific objection is made by the defendant, that the jury did in fact find that the plaint- ■ iff had established title to the property by reason of adverse possession under the then existing statute of limitations.

It is claimed, however, by the appellant, “ that no right to the possession of said lot is claimed in the complaint or replication by virtue of adverse possession or statute of limitations. Therefore, such right, even if proved and found by a jury, could not have availed her anything.”

The complaint alleges “'that this plaintiff and her grantors and predecessors' in interest have been in the' quiet, lawful and exclusive possession of said premises since August, 1866, continuously up to and until the 4th day of October, 1877, and that this plaintiff was in the lawful, continuous and exclusive possession of said premises from the 2d day of August, 1870, up to and until the 4th day of October, 1877.” This allegation is denied by the answer, and the sole, exclusive and peaceable possession of the premises alleged to be in the defendant since the 22d day of February, 1873. The replication denies possession of any portion of the premises by the defendant or his predecessors in interest prior to October 4, 1877. As before observed, evidence was introduced upon the issue thus joined, special findings made thereon, and a general verdict.

The Code of Civil Procedure provides that the allegations of a pleading shall be construed with a view to substantial justice between the parties. In Gillespie v. Jones, 47 Cal. 259, which was an action of ejectment, Niles, J., uses the following language: “The plaintiff’s ownership in fee and right to the possession of the land at the commencement of the suit is averred, and under this he might prove any facts which would entitle him to possession at that time. The averment that the plaintiff’s grantor had been in possession for more than five years was superfluous.” The issued joined upon the above allegations and denials necessarily involved the question of adverse possession under the statute of limitations, and the averment that plaintiff had been in possession for more than three years prior to the 4th of October, 1877, would be merely surplusage.

The case was evidently tried upon this theory. In this view of the case, the general verdict is sustained by the pleadings, evidence, and the law in relation thereto.

The judgment is affirmed, with costs.

Judgment affirmed.