Estep v. Armstrong

Sharpstein, J. This is an appeal from a judgment entered against the plaintiff and in,favor of the defendant, in an action of ejectment.

The record consists of the pleadings, findings, judgment, and a bill of exceptions.

The court found that the plaintiff, Amanda C. Estep, is the daughter and heir at law of Joseph H. Estep, deceased; that the said Joseph H. Estep was, at the time of his death, seised in fee and possessed of those certain lands and premises in the complaint mentioned, known as the Fitzgerald tract, describing the same according to the United States survey; that at the time of his death, said Joseph H. Estep was the owner of the undivided one half of all the remainder of the land described, as a tenant in common with the defendant, James B. Armstrong, who owned the other undivided half thereof; that the defendant, at the time of the commencement of this action, was and still is in possession of certain of the lauds in the complaint described, which lands are fully and particularly described in said finding; that said Joseph H. Estep left a last will and testament, of which a copy is set out in said finding, one clause of which only is material in this case, and that is as follows: “ It is my will, that so soon after my decease as practicable in the judgment of my executrix hereinafter mentioned, all my property, whether real, personal, or mixed, be converted into [662]money”; that said will was duly admitted to probate by the "probate court of Lake County, on the twenty-first day of February, 1876; that plaintiff has never at any time been the owner or seised in fee or otherwise, or possessed or entitled to the possession of the lands described in the amended complaint herein, or in any cause or causes of action herein, or of any interest to said lands, or any part thereof, or of any of them; that defendant never at any time did oust or eject plaintiff from any of the lands described in said amended complaint, or in any cause or causes of action set out in said complaint.

The bill of exceptions shows that the facts found by the court in the first, second, third, and fourth findings were admitted, and plaintiff then offered evidence to show the value of the rents of the premises, admitted to have been in defendant’s possession at the commencement of this action, to which defendant objected, on the ground that such evidence was incompetent, irrelevant, and immaterial," for the reason that plaintiff bad shown by her own evidence that she was never at any time the owner of any right to or interest in the land.