Eversdon v. Mayhew

<p>Appeal—Law of the Case — Points Necessarily Involved — Examination of Former Transcript. — The decision of this court rendered upon a former appeal becomes the law of the case as to whatever was necessarily involved in the decision; and the transcript and briefs upon that appeal may be examined by the court, to discover what points were necessarily involved.</p> <p>Id. — Sufficiency of Complaint to Enforce a Trust. — When the transcript upon a former appeal shows that the complaint is the same as upon a subsequent appeal, and that the same argument against its sufficiency was made upon both appeals, the decision upon a former appeal, that upon the record before the court the plaintiff is entitled to a beneficial interest in one half the property, necessarily involves the sufficiency of the complaint to establish and enforce a trust in respect to such interest; and such sufficiency cannot be inquired into upon the subsequent appeal.</p> <p>Misjoinder of Causes of Action — Pleading—-Demurrer — Motion to Strike out. — A misjoinder of two causes of action in a complaint can only be objected to by a demurrer on that ground, and cannot be remedied by a motion to strike out part of the pleading.</p> <p>Variance in Proof — Remedy—Objection to Evidence — Nonsuit.— If the cause of action shown by the evidence is somewhat, but not rad« ically, different from that stated in the complaint, the objection should be presented, either by a specific objeetiou to evidence, or by a motion for nonsuit, particularly indicating the precise ground.</p> <p>Enforcement of Trust — Town-site Title —Patent in Trust for Occupants— Rights of Co-heirs of Occupant.— An heir of one who was in possession of a town lot under color of title, and who was one of the class for whose benefit the town-site acts were passed, can enforce a trust for his moiety of interest against a co-heir who obtains title to the whole lot under a patent issued “in trust for the several use and benefit of the occupants of the town site according to their respective interests,” and may enforce such trust against a purchaser from such co-heir with notice of the rights of the plaintiff.</p> <p>Id. — Deed of Town Lot — Assumed Name of Grantee — Identity.— The fact that the possessor of such town lot became the occupant under a deed from a prior occupant made to her as grantee under an assumed name, by which she was known, instead of her real name, is unimportant, and cannot affect her rights as a beneficiary under the town-site patent.</p> <p>Id.—Notice to Purchaser from Co-heir — Record of Deed to Occupant. — The record of such deed to the occupant of the town lot under such assumed name is notice to a subsequent purchaser from the husband of the grantee, who acquired the title to the whole lot, in fraud of the rights of plaintiff as a co-heir, sufficient to put such purchaser upon inquiry as to the true condition of the title, and he is chargeable with notice that the plaintiff was the equitable owner of one half of the property, if the evidence shows that slight inquiry would have apprised him of that fact.</p> <p>Secondary Evidence — Admission of Copy of Deed — General Objection. —The admission of a copy of a deed, without accounting for the original, can only be objected to on the ground that the copy is not the best evidence, and a general objection is insufficient.</p>