Moore v. Hoffman

McFARLAND, J. Plaintiff avers in her complaint that she is the owner of the undivided one-half of certain described land, and is entitled to the possession thereof, and that defendants are unlawfully in possession of said land; and she prays for the recovery of the possession of the land from defendants, with damages, et cetera. The defendants, in their answer, admit that plaintiff is the owner and entitled to possession of the undivided one-third of the premises (and afterward, at the trial, admitted that she was entitled to one-half); but they say that the defendant Alice is the owner of an undivided interest in the land as tenant in common with plaintiff, and they claim only the right to hold possession jointly with plaintiff as tenant in common. The jury found for the defendants, for whom judgment was rendered; and plaintiff appeals from the judgment and from an order denying her motion for a new trial.

Appellant makes many points for a reversal which, under our view of the case, need not be discussed; for, waiving all contentions of appellant as to minor matters, the court erred as to the leading questions in the ease which goes to the real merits of the controversy.

William H. Moore died intestate seised of the land in question, leaving a widow, the appellant herein, and three minor children, Charles Moore, Stella Moore, and William M. Moore. Afterward, and during the administration of his estate, to-wit, on April 26, 1881, the court in which the administration was pending duly set apart the land in question here as a probate [92]homestead to the appellant, as widow, and the minor children— the order setting it apart declaring that one-half should -go to the widow and the other half to the children, or one-sixth to each of them. On September 11, 1889, Charles Moore, one of the children, who had then attained his majority, conveyed by deed to Alice Hoffman, one of the respondents, an undivided two-fifteenths of an undivided one-sixth of the land. And under this deed the said Alice, and the other respondent, her husband, William C. Hoffman, who was also made a party defendant, claim the right to possession as tenants in common with appellant. It does not expressly appear whether or not the other two children had attained majority at the time this suit was commenced, although according to certain dates which the record shows they probably had; and, for the purposes of the case, we will assume that all the children were of legal age at the time of the commencement of this action, as that view is the most favorable to respondents.