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Clay v. Scheeline Bank & T. Co.

December 31, 1916

EDWIN CLAY AND EMMA CLAY (HIS WIFE), APPELLANTS, V. SCHEELINE BANKING AND TRUST COMPANY (A CORPORATION) AND C. P. FERREL, SHERIFF OF WASHOE COUNTY, STATE OF NEVADA, RESPONDENTS.


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

Summerfield & Richards, for Appellant.

James T. Boyd, for Respondents.

By the Court, Coleman, J.:

This is an appeal from a judgment in favor of respondents, who were defendants in the district court, by Edwin Clay and Emma V. Clay, his wife, who were plaintiffs in the district court.

In their complaint it is alleged that the plaintiff Emma V. Clay was the owner of certain improved real estate; that the plaintiffs had been, and at the time of filing the suit were, residing upon the property; that the plaintiffs filed and had recorded in the proper office their homestead selection, designating the property in question as a homestead. It is also alleged in the complaint as follows:

“That, notwithstanding the fact hereinabove alleged that the ownership of said real property by said Emma Clay as aforesaid, and the declaration thereon by herself and said Edwin Clay of the homestead marked Exhibit A, hereby specially referred to and made a part hereof, the said defendants, Scheeline Banking and Trust Company, a corporation, and C. P. Ferrel, sheriff of Washoe County, State of Nevada, are endeavoring to cloud and cast a cloud upon said real property, in that they and each of them are causing to be sold said real property pursuant to a certain judgment dated the 16th day of March, 1915, wherein said defendant Scheeline Banking and Trust Company recovered a judgment against said plaintiffs, in that certain action entitled Scheeline Banking and Trust Company, a corporation, plaintiffs, against Edwin Clay and Emma Clay, for the sum of $2,004.83, and the interest thereon, pursuant to the terms of said

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judgment, and notwithstanding the further fact that said defendants have no right, title, interest, claim, or demand in or to said real property or any part thereof, and the said plaintiffs are the owners thereof, seized in fee simple absolute, in the possession, and entitled to the immediate possession of said real property.”

The prayer of the complaint is as follows:

“Wherefore plaintiffs pray that the title and ownership to said real property be forever quieted against said defendants and each of them, and that said plaintiffs be declared to be the owners of said real property and the whole thereof, and that said plaintiffs have judgment herein pursuant to law accordingly, and for costs of suit.”

Omitting the introductory statements, the answer of the defendants reads:

“Denies that the plaintiffs were residing at the time of the alleged claim of homestead or at any other time on the described premises; denies that the plaintiff claimed the property and its appurtenances set forth in plaintiffs' complaint as a homestead, or that the plaintiffs, or either of them were entitled to claim said premises and appurtenances as a homestead, by reason of the declaration of homestead or otherwise, or at all; denies that at the time of the alleged declaration of homestead, or at any other time, the plaintiffs or either of them were actually or at all residing or living upon said described premises, or that they claimed, or intended to claim, or that they were entitled to claim, said premises and its appurtenances or any part thereof as a homestead, or that said premises was or could be claimed as a homestead; denies that said premises was ever used by the plaintiff as a homestead.”

The case was tried before the court without a jury, and the court in its findings of fact found that:

“At the time the declaration of homestead was made and filed the plaintiffs were not residing thereon, and had not the intention to use, and did not actually use and occupy, the premises described in said declaration as a homestead as ...


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