Odd Fellows' Savings Bank v. Turman

McFARLAND, J. This is an appeal by plaintiff from a judgment in favor of defendant and from an order denying a new trial. In the complaint (which was not verified) it is averred that plaintiff is, and during a certain named period was, “the owner of and lawfully in possession of” a large body of land described by legal subdivisions; and [547]that during the said named period defendant’s cattle pastured on said land, and destroyed grass, hay, etc., to plaintiff’s damage in the sum of $3,000. In the answer “each and every allegation” of the complaint is denied. The court found that plaintiff was not either the owner or in possession of any part of the land described in the complaint at any time mentioned therein, and the evidence clearly warrants said finding. To prove paper title, plaintiff introduced a properly certified transcript of a recorded deed from one Maurice Dore to plaintiff, which purported to convey “a portion” of the land described in the complaint—what portion does not appear. There was then introduced a defective certificate of another recorded deed from said Dore to plaintiff of a “further portion” of said lands, and another defective certificate of a recorded deed to plaintiff from one Fisher of the “remaining portion” thereof. This was all the evidence offered on that subject. There was no evidence tending to show that either said Dore or Fisher ever had title, or any estate or interest whatever, in any part of said land. There was no attempt to trace the title to its paramount source, and therefore no title was shown. There was no evidence that plaintiff entered upon said land, or any part of it, claiming under either of said deeds, and therefore there was no color of title shown.

There was no evidence showing that plaintiff was ever in the actual possession of the land or of any part of it. It is mostly tule land, unfenced and uninclosed. An agent of plaintiff visited the land once, and had some surveying done for the purpose of locating a certain Coon lake; and he also at one time advertised it for sale or rent, but had no offers. He also notified defendant’s agent once to keep his cattle off “that land.” These were the only acts done in the premises, and, of course, they did not constitute actual possession.

Appellant contends that there is some evidence of plaintiff’s title to some parts of the land in certain answers of its witness Hiatt, given on cross-examination, in which he says, without objection, that “the bank owns” certain mentioned small tracts. But these answers were in response to questions in cross-examination, evidently, not with reference to the subject of title or ownership, but for the pur