Eva v. Symons

CHIPMAN, C.

Ejectment. Plaintiffs are the heirs at law and devisees of James Eva, deceased, whose last will was duly probated, his estate settled, and final distribution made and the executors discharged. The land in question was distributed to plaintiffs and they bring the action for possession, for damages for withholding possession, and for rents and profits. Defendants denied specifically the averments of the complaint, and claimed to be the equitable owners of the land by virtue of verbal gift of James Eva in his lifetime and possession taken thereunder and ever since retained, the alleged facts appearing in the answer and in a cross-complaint.

In their answer to the cross-complaint plaintiffs deny specifically defendants’ allegations relating to the alleged gift of the land to them; admit defendants’ possession, but deny that such possession was taken under the alleged agreement by defendants with James Eva, and pray that they, defendants, “have judgment as hereinbefore prayed for and decree that plaintiffs are the owners, seized in fee of all the said premises in said cross-complaint described,” and that defendants have no title to or interest in the land.

The findings of fact set forth that the cause came on regularly to be tried “upon the complaint of plaintiffs theretofore filed herein, and upon the answer and cross-complaint of the defendants theretofore filed herein. . . . Said cause was by stipulation of the parties in open court heard upon the equitable defense interposed by the defendants herein by their answer and cross-complaint filed herein, and the jury was impaneled to advise the court upon such questions of fact

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relating to said equitable defense as might be thereafter submitted to it by the court.” The special issue submitted was, Did James Eva give the land to defendants and place them in possession? The jury answered “Yes,” but the court disregarded the verdict and made findings against defendants. The court also found that James Eva took the title to the land in his own name, but did not promise that he would then or thereafter convey the same to defendants, and that he never did convey the title to them or either of them; that plaintiffs claim as devisees of said James Eva, deceased, and “plaintiffs are the owners of said real property, and are seized in fee of the legal title thereto and the whole thereof.” As conclusions of law, the' court found that defendants are not the owners of the land nor seized in fee of all or any part thereof, and that plaintiffs are the owners and seized in fee of the whole thereof; that defendants are not entitled to judgment on their equitable defense interposed by their answer and cross-complaint, but that plaintiffs are entitled to judgment thereon. Judgment passed for plaintiffs, adjudging that “plaintiffs are the owners seized in fee of said lands and premises and the whole thereof; that defendants are not entitled to judgment upon their equitable defense interposed in this action, but that plaintiffs are entitled to judgment” thereon. Defendants appeal from the judgment on the judgment-roll alone.