Crump v. Crump

Atkinson, J.

Under tlie facts alleged in the petition and the amendments allowed, the court did not err in sustaining a general demurrer; nor did the court err in refusing the amendment which was rejected

Judgment affirmed.

All the Justices■ concur.

The court rejected an amendment which alleged: “That in pursuance of the agreement and division of said 100 acres of land, plaintiffs entered into exclusive possession of the western half of the 100 acres, which consists of 46 acres, more or less, and more fully described in last half of paragraph two amended petition; and that their possession was and is evidenced by the exercise of absolute control and dominion over said premises, to the exclusion of the defendants and all other persons whatsoever, and to the extent of those claiming under pretended deeds from defendants. That from the time of said division plaintiffs’ possession has been adverse to defendants, plaintiffs and defendants both recognizing the dividing lines as run and made and established, as more fully set out in the amended answer, by the county surveyor, J. Ii. Whitworth, plaintiffs relinquishing any claim or right they had in the other half of said land, which consists of 54 acres, more or less, and deféndants relinquishing any claim or right they may have had in the said 46 acres known as the western half on which plaintiffs reside. That since said division plaintiffs and defendants both have recognized and observed the lines as established by said county surveyor in making the division, and their possession has extended to the lines as alleged were established, and each to the exclusion of the. other from the respective premises, by only controlling or attempting to control up to sa-id lines. That defendants recognized the division and lines then established, and have not exercised any control over the said 46 acres, but only over the 54 acres, and recognizing the lines as established at the instance of the defendants.”

The defendants demurred to the petition as amended, on the ground that it failed to set forth a cause of action, and that the allegations of the petition amounted to an attempt to set up an express trust by parol. The judge sustained the demurrer and dismissed the petition. Error was assigned upon this judgment, and upon the judgment refusing to allow the proposed amendment.

Robert T. Gamp and A. S. Shelton, for plaintiffs. ■J. E. & Emmett Slcellon, George L. Goode, W. R. IÁllle, and Richard B. Russell, for defendants.