Martin v. Ward
Before: Searls
Synopsis
Ejectment—Special Issues—Findings against Dependant—Rental Value — Instruction to Find for Plaintiff. — The action was brought to recover the possession of certain land. The complaint was in the usual form, and prayed for the recovery of the possession, with damages for the withholding, and the value of the rents and profits. The answer, besides a general denial, set up the statute of limitations and a previous judgment in bar of the action, and as a cross-complaint, alleged an agreement by the plaintiff to convey the land to the defendant, and prayed for a specific performance thereof. The special issues raised by the cross-complaint were submitted to the jury, who found thereon adversely to the defendant. At the trial, the ownership of the land by the plaintiff at the date of the alleged agreement was admitted. No evidence in support of the plea of a former adjudication was offered, and the evidence was insufficient to sustain the plea of the statute of limitations. The defendant testified that the rental value of the premises was about ten dollars a month. On the coming in of the special verdict, the court instructed the jury to find for the plaintiff, and to fix the rental value at eight dollars a month. Held, that the instruction of the court was proper.
Id. —When Court mat Direct Verdict. —The court has power to direct a verdict when there is no conflict in' the evidence.
Searls, C. This is an action of ejectment to recover-a lot of land twenty-five feet front by sixty-nine feet deep, situated on Douglas Street, city and county of San Francisco. The appeal is from a judgment in favor of' plaintiff, and from an order denying a new trial.
The complaint is in the usual form in ejectment, avers-the value of the rents and profits of the demanded premises to be two hundred dollars, and demands judgment.. [130]for possession, for five hundred dollars damages for withholding possession thereof, and for two hundred dollars, the value of the rents and profits, and for costs.
The complaint is followed by the usual affidavit in verification, but does not appear to have been sworn to, and must be treated as an unverified complaint.
The answer contains:—■
1. A general denial of “ each and every allegation in said complaint contained.”
2. Sets up that plaintiff’s action is barred by sections 318 and 319 of the Code of Civil Procedure of the state of California.
3. A plea of a judgment in favor of defendant, deter-mining the title to the demanded premises in defendant’s favor.
4. And for a further and separate defense, and as a cross-complaint, defendant avers in substance, that in the latter part of 1868, plaintiff being the owner of 75 feet front by 125 feet deep on Douglas Street, in consideration that defendant would build for her, said plaintiff, on said land, a house, agreed to convey to him, the defendant, the northerly one third, or 25 feet front by 125 feet deep, parcel of said land; that on or about January, 1869, defendant entered into possession of said land so agreed to be conveyed, and has ever since held the exclusive, visible, open, and notorious possession thereof, adverse to all the world claiming title thereto; that the defendant built the house for plaintiff as per the agreement, and that the same was accepted by her; that plaintiff agreed to execute to defendant a deed, but has never done so.
Wherefore defendant prays that he be decreed to be the legal owner of the premises, and that plaintiff execute to him a deed, etc.
At the trial it was admitted that the plaintiff was the owner of the land in 1869, at the time of the alleged agreement, and by consent of parties the following special
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