Damrell v. Meyer

Appeal from tbe District Court of tbe Fifth District, San Joaquin County.

Action of ejectment to recover possession of tbe southerly-forty-seven acres of tbe west half of tbe southeast quarter of Section 18, (T. 2 N. E. 8 E. ) in tbe County of San Joaquin.

Tbe answer of defendant contains a cross-complaint in wbicb be alleges, that being a qualified pre-emptor in 1850, be entered upon and settled tbe land adjoining tbe land in controversy; tbat be bas ever since claimed and cultivated tbe land in controversy; tbat plaintiff bas used and cultivated tbe remaining tbirty-tbree acres of tbe west balf of tbe southeast quarter of Section 18 since 1856; tbat in consequence of an understanding and agreement between plaintiff and defendant tbat eacb party was to bave and take title to tbe said part of tbe west balf of tbe southeast quarter of Section 18, in their possession respectively, defendant suffered plaintiff in 1861, without opposition or contest, to go on and acquire title to tbe entire west balf of said southeast quarter, believing tbat plaintiff would, whenever be acquired title, and in conformity with tbe said understanding and agreement, convey tbe title to tbat part of tbe land in defendant’s possession to defendant on defendant’s reimbursing to plaintiff the costs and expenses and purchase money of such part. Tbat after plaintiff bad procured a certificate of purchase for tbe said west balf of tbe southeast quarter of Section 18, be refused .to recognize and abide by the understanding and agreement aforesaid, and claimed tbe right to procure and bold tbe title to said land and every part thereof, to tbe entire exclusion of any claim or right of defendant to said forty-seven acres in defendant’s possession, and tbat a patent bas been issued to plaintiff for said land by means of wbicb tbe plaintiff, by bis action at law, threatens to eject defendant from said premises.

Wherefore, tbe defendant prays tbe Court as a Court of equity, for a decree or judgment declaring tbat plaintiff bolds tbe legal title to said forty-seven acres in trust for defendant, and, tbat on payment to him by defendant of tbe costs, expenses and purchase money to be ascertained by said decree, plaintiff shall convey the legal title to said premises to defendant; and tbat plaintiff be enjoined and restrained from prosecuting further Ms said action of ejectment, etc.

Plaintiff demurred to defendant’s cross-complaint, and tbe demurrer was overruled by tbe Court. On tbe trial, after plaintiff bad closed bis testimony, tbe defendant offered to prove all tbe facts set out in bis cross-complaint, and wbicb were put in issue by plaintiff’s denial thereof. Plaintiff objected, and tbe objection was sustained by tbe Court.

Judgment was for plaintiff, and defendant appealed.