Frisbie v. Price

By the Court, Sanderson, C. J. This is an action to recover real estate. The plaintiff avers seizin and possession on the second day of June, 1862, and entry and ouster by the defendants on the same day. The complaint is not verified, and the answer, after denying generally all the allegations of the complaint, proceeds and avers:

First—That all the title or claim which the plaintiff has to the land in controversy is derived from a pretended Spanish grant, which has been rejected and declared null and void by the Supreme Court of the United States; and that said land is public land belonging to the Government of the United States. Second—That the defendant, John R. Price, has taken up and holds said land under the possessory Act of this State, and had done so prior to the alleged entry and ouster. Third —That the defendant, Mary E. Price, is the wife of her co-[254]defendant, John R. Price, and has therefore been improperly joined as a defendant. Fourth—That plaintiff’s cause of action has not accrued within five years, etc.

The trial was by the Court, without a jury. The findings and judgment were for the plaintiff as against John R. Price, and as to Mary E. Price, the plaintiff took a nonsuit.

The defendants offered no evidence, but after the plaintiff ’ had closed his case, moved for a nonsuit, which was denied; and the question presented for our consideration is whether the plaintiff was entitled to recover upon his testimony.

It appears 'that the plaintiff sought to recover as landlord and upon notice to quit; and to make out his case he offered in evidence two instruments in writing, one signed by himself and the defendant John R. Price, and the other by himself and Mary E. Price. Both are contracts for the sale and conveyance of the land in question. The first was dated on the 20th day of February, 1856, and the last on the 24th day of December, in the same year. At the foot of the first appears a release by Price of all his interest in the contract, dated on the 23d of December, being the day next preceding that on which the contract with his wife was executed-. At the time these instruments were offered, the counsel for plaintiff stated that they were offered solely for the purpose of proving that the defendants obtained possession of the premises from the plaintiff, and went in under him. Both instruments contain a covenant that the defendants may enter, possess and enjoy the premises until a breach of the contract on their part. Both of these instruments were objected to by the defendants upon the ground that they were “ irrelevant, immaterial, and incompetent testimony.’’ The objection was overruled, and the defendants excepted.