Sharon v. Davidson , 4 Nev. 416 ( 1868 )

By the Court,

Whitman, J.

Plaintiff appeals from a judgment of nonsuit rendered against him in the District Court of the Third Judicial District.

The action was to recover certain real property (timber land) and damages. Peter Davidson, the only defendant served, answered, claiming title. The following reasons were assigned for the judgment : First. “ That the original marking of the lines of the Chapin tract and sufficient defining of the boundaries of said tract by the parties locating the same, is not so shown by the testimony adduced as to make a prima facie case.” Second. “ That it is not shown by the evidence that the plaintiff is the owner of the legal title of the parties who originally entered into possession by their cotenant Chapin; but on the other hand, that the proof shows that the interests of the said other cotenants still exist, while they do not appear as parties either plaintiff or defendant.”

There was evidence tending to prove a survey, a marking of lines by blazing and felling trees, building a mill and other houses, cutting timber and wood, and other acts of appropriate dominion. Whether this was sufficient to establish plaintiff’s claim was for the jury, not the Court, to decide. (Staininger v. Andrews, ante, p. 59.)

Several deeds, purporting to convey the remainder of the original title to plaintiff, were excluded upon the ground that there was no proof of their execution, as they were made before the passage of the “ Act concerning conveyances,” approved November 5th, 1861, but acknowledged as provided therein. Under a similar statute, the Supreme Court of California decided such acknowledgment competent prima facie proof of execution. (Clark v. Troy, 20 Cal. 219.) It undoubtedly is. The error of excluding these deeds probably created the second ground of nonsuit; but if not, one tenant in common may recover the entire common property as against a stranger. The nonsuit was improperly granted upon either ground.

The judgment is reversed, and cause remanded.