Merrill v. Bachelder

HARRISON, J. The defendant is the administratrix of the estate of Joseph E. Bachelder, deceased, and as such administra[675]trix advertised for sale certain parcels of real estate as a portion of the estate of her intestate. The plaintiff alleges in her complaint herein that she is the owner in fee of the said real estate, and seeks to restrain the defendant from selling or from offering the same for sale, upon the ground that her title thereto will be clouded. Judgment was rendered in favor of the plaintiff, and the defendant has appealed therefrom, and from an order denying a new trial. The allegations of the complaint are sufficient to support the judgment, and, as findings of fact were waived by the parties, only the order denying a new trial can be considered

For the purpose of establishing her claim of ownership, the plaintiff offered in evidence a judgment-roll in an action brought by her grantor against the defendant herein and the heirs of her intestate, in which the superior court had adjudged that her grantor was the owner in fee of said parcels of land, and quieting her title as against the defendants therein, and declaring that they be debarred from asserting any title thereto. The defendant objected to the introduction of this evidence on the ground of incompetency, and urges upon this appeal that by reason of its recitals the judgment itself cannot be made the foundation of any rights in the plaintiff. The judgment is in the following form:

“This cause coming on regularly for trial on the twenty-second day of September, A. D. 1896, a trial of said cause was had before the court without a jury; whereupon witnesses on the part of the plaintiff and the defendants were sworn and examined, and documentary evidence introduced by respective parties; and the evidence being closed, the said parties in open court stipulated and agreed that the plaintiff should have judgment as prayed for in her complaint, that a judgment and decree might be entered herein adjudging said plaintiff to be the owner of and entitled to the possession of the property described in the complaint; and findings were waived.

“Wherefore, by reason of the law and the facts herein, findings, of which have been duly waived by the defendants, it is ordered, adjudged and decreed that the plaintiff is the owner in fee of the property described in the complaint” (describing the same and quieting her title thereto).

It is contended by the appellant that the administratrix could