Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.
Cole L. Harwood, for Appellants.
M. B. Moore and Hoyt, Gibbons & French, for Respondents.
By the Court, Coleman, J.:
This is an appeal from a judgment of non-suit and from an order denying a motion for a new trial.
1. Su Lee and Charley Bi Yen, suing for themselves and others as members of and on behalf of the Lin Hing Gungsha, or Joss House Society of Reno, Nevada, an unincorporated society, brought suit against the defendants to quiet title to certain real estate. The pleadings are in the usual form. At the conclusion of the evidence offered on the part of the plaintiffs, a motion for a non-suit was interposed. The court sustained the motion, upon the ground that an unincorporated society cannot take title
to real estate in Nevada. In denying the motion for a new trial the court adhered to its original view, and also held that plaintiffs had failed to prove a gift of the property in question to the society, but that the evidence showed only a license to occupy the premises in question without rent, and that possession under such conditions was not such an adverse possession in the society as could ripen into title.
We will consider the last proposition first.
Ong Chee, a witness in behalf of plaintiffs, testified:
Q. Well, did you have anything to do with the location of that joss house over there? A. Yes; that time when I was put up money, me help to build that building. * * *
Q. Well, now, state what you had to do, if anything, with the location of the joss house in Chinatown? A. * * * Well, whenfirst after the fire burn up the town and Mr. Manning asked these Chinamen to move down that place, first place Chinamen think that place is too low; didn't want to move down it the first place. After that they come talk to me and try to get these Chinamen to move down there and he willing to give them a place, a lot of land to build a church, joss house, and then I told him I will move up to CarsonI ain't got anything to do with this townand you better go down there and talk to Su Lee and Quong Ah Moon, that is the store name, man's name keeps the store here.
Q. Well, did you have a further talk with Mr. Manning and Mr. Haskell about it? A. Then I take Mr. Manningyou see, that time Chinatown burn, and that fellow Quong Ah Moon and Su Lee had a laundry house on this side of the depot, and I take him up there and show him the place where Su Lee is and Quong Ah Moon is, and he have a talk with them. So I didn't talk to him afterwards. * * *
Q. State exactly, as near as you can remember, what either Mr. Manning or Mr. Haskell said about giving this land, if anything? A. Well, he says he givehe willing to give that piece of land to build joss house, a lot of land.
Q. Who did he say that to? A. He say that to me first place. And then I tell him I move my store up to Carson City, and I ain't got nothing to do with it, and then I take them up to talk to Su Lee and Quong Ah Moon.
Q. Did you havedid you hear what they said to him? A. Yes; I hear him. I haven't time to wait for them, and after that they stay there and talk a long while, I suppose; I didn't wait for them. I tell him to go up there and explain it to Su Lee and Quong Ah Moon.
Q. When was this? What year was this conversation that you refer to? A. That was on the 78.
Q. About 78? A. In 1878.
Q. Do you know how soon after that the joss house was built that you described, the two-story building, the first one? A. That joss house built in 79. I suppose on about between April and May, I think.
Q. In 79? A. In 79 I think; about in the summer time.
Q. Were you ever in that building after it was built? A. Oh, yes. I was here when he build him; they had lots of fun there, lots of people from Winnemucca and Truckee and all those places come here.
Q. Had kind of ceremony? A. Yes; had some kind of ceremony.
Q. And were you ever in That building you have said was burned. Were you ever in the building that is there now? A. Oh,yes.
Q. When did you move to San Francisco? When did you leave Nevada? A. I leave Nevada about 26 years ago.
Q. About 26 years ago? A. Yes.
Q. And how many times were you in that building; say that is there now? A. Well, the time that he build it I think many times; many times when he build it before I went to San Francisco, and then when I come back from San Francisco mostly 2 or 3 years time I come up here and sometimes drop in. Many times I been in there.
Q. And do you know what the building that was put on there first, the two-story building, what it ...