Reece v. Roush
Montana Supreme Court
Appeal from Third District, Lewis and Cla/rke County. The judgment was rendered by Wade, J. Respondents cannot plead an equitable defense in this action unless they put themselves in a position to .finally determine the controversy and obtain a decree securing their rights. Lomme v. Kintzmg, 1 Mon. 290; 1 Tan Santv. PL (Moah’s ed.) 687; Kenr yon v. Quinn, 41 Cal. 325. The trust set up in respondents’ answer is express, and cannot be proved by oral testimony.
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Appeal from Third District, Lewis and Cla/rke County. The judgment was rendered by Wade, J. Respondents cannot plead an equitable defense in this action unless they put themselves in a position to .finally determine the controversy and obtain a decree securing their rights. Lomme v. Kintzmg, 1 Mon. 290; 1 Tan Santv. PL (Moah’s ed.) 687; Kenr yon v. Quinn, 41 Cal. 325. The trust set up in respondents’ answer is express, and cannot be proved by oral testimony. It is not a resulting trust, as respondents paid no purchase-money. It is not created by law and saved from the statute of frauds. Cod.…
1Opinion of the Court
BlaKE," J.
The complaint alleges that the appellant is the owner in fee and entitled to the possession of a certain lot of land in Helena, and that the respondents are in the possession of and wrongfully withhold the same. The prayer is for the possession of the property and damages for its wrongful withholding.
The respondents do not deny any of these allegations, except that relating to the wrongful withholding, and say, in their answer, that the lot was sold by the sheriff November 10, 1871, under á decree of the district court against them; that appellant, at the request of the respondents,…
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