Ward v. Cochran
150 U.S. 597 (1893)

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U.S. Supreme Court

Ward v. Cochran, 150 U.S. 597 (1893)

Ward v. Cochran

No. 110

Argued and submitted November 23-24, 1893

Decided December 18, 1893

150 U.S. 597

Syllabus

An express order of court during the judgment term continuing a cause for the purpose of settling, allowing, signing, and filing a bill of exceptions, and the settlement and allowance and filing of the bill, during the terms to which the continuance was made, takes the exceptions out of the operation of the general rule that the power to reduce exceptions to form and have them signed and filed is, under ordinary circumstances, confined to the term at which the judgment is rendered.

A bill of exceptions which, insofar as it relates to the charge, specifies with distinctness the parts excepted to, and the legal propositions to which exceptions are taken, is sufficient.

A defendant in ejectment who relies on adverse possession during the statutory period as a defense must show actual possession -- not constructive -- and an exclusive possession -- not a possession in participation with the owner or others.

When a special verdict is rendered, all the facts essential to entitle a party to a judgment must be found.

A judgment rendered on a special verdict failing to find all the essential facts is erroneous, and consequently a special verdict in an action of ejectment which finds that the grantor of the defendant entered into possession of the land in controversy under a claim of ownership and that he remained in the open, continued, notorious, and adverse possession thereof for the period of sixteen years, when he sold and transferred the same to the defendant, who remained in open, continuous, notorious, and adverse possession of the same under claim of ownership down to the present time, is defective in that it does not find that the adverse possession was actual and exclusive.

This was an action of ejectment brought at November term, 1887, in the Circuit Court of the United States for the

Page 150 U. S. 598

District of Nebraska by Seth E. Ward, a citizen of the State of Missouri, against Elmer G. Cochran, a citizen of the State of Nebraska, to recover the possession of twenty acres of land situated in the suburbs of the City of Omaha, and described as the west one-half of the northeast one-quarter of section 4, township 15 north, range 13 east, in Douglas County, Nebraska.

In pursuance of the practice in that state under which two trials in ejectment are necessary to a final determination of a question of title, a trial was had before a judge, without a jury, and a judgment was entered in favor of the defendant. This judgment was forthwith, on motion of the plaintiff, set aside and a new trial was awarded.

At this trial, the record discloses that the plaintiff sustained his side of the issue by putting in evidence a chain of title from the United States to himself consisting of a patent of the United States to Alexander R. McCandlers dated March 13, 1861, for a tract of land, including the piece in dispute; a deed of Alexander R. McCandlers to Michael Thompson, dated May 2, 1861, for the same tract; a deed of Michael Thompson and wife to Edward B. Taylor, dated July 5, 1862, for said tract; a mortgage of Edward B. Taylor, to Ward, the plaintiff, dated July 28, 1871, on the twenty-acre tract in controversy, to secure the payment of certain promissory notes; the record of proceedings in suit by Ward, the plaintiff, against the heirs and legal representatives of Edward B. Taylor, who had died in 1872, to foreclose said mortgage, and a sheriff's deed, under decree in said suit, to Ward, the plaintiff, dated July 11, 1877; a deed of Edward A. Taylor (son and one of the heirs of Edward B, Taylor, and the only heir who had not been made a party to the foreclosure suit) to Ward, the plaintiff, dated June 25, 1885, for the twenty-acre tract in dispute. It was admitted that the value of the land was $20,000 at the time of the bringing of the suit.

The defendant adduced evidence tending to show that one John Flanagan had entered on the tract in dispute in 1868 under a parol sale of said tract to him by Edward B. Taylor; that Flanagan had continued in possession of the tract until 1885, when, on November 25 of that year, Flanagan and wife

Page 150 U. S. 599

conveyed the tract to the defendant by deed of that date, who entered into possession.

On December 9, 1889, the jury rendered a special verdict, in the following words and figures:

"We, the jury impaneled and sworn to try the issues joined in the above-entitled cause, do find and say that one John Flanagan, in the year 1868, entered into the possession of the west one-half of the northeast quarter of the southwest quarter of section 4, in township 15 north, of range 13 east of the 6th principal meridian, in Douglas County, Nebraska, being the land in controversy in this case, under a claim of ownership thereto, and that he remained in the open, continued, notorious, and adverse possession thereof for the period of sixteen (16) years thereafter, and until he sold and transferred the same to the defendant in this case."

"We further find that said John Flanagan and Julia, his wife, by good and lawful deed of conveyance, conveyed said premises to the defendant in this suit in 1885, and surrendered his possession to this defendant, and that said defendant has remained in the open, continuous, notorious, and adverse possession of the same under claim of ownership down to the present time. We therefore find that at the commencement of this suit, the defendant was the owner of and entitled to the possession of the said premises, and upon the issues joined in this case we find for said defendant."

On December 9, 1887, the plaintiff, by his counsel, moved for a new trial for reasons filed, and on the same day moved the court for judgment in his behalf notwithstanding the verdict.

On December 5, 1889, the motion for a new trial was overruled, and judgment was entered in favor of the defendant in pursuance of the verdict, and to said judgment a writ of error to this Court was sued out and allowed.

Page 150 U. S. 602

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