Wills

This action is brought by the plaintiff for the purpose of having it declared that defendant holds the undivided one half of a certain tract of land described in the complaint as the trustee of the plaintiff, and to obtain a conveyance thereof by defendant to plaintiff, and an accounting for rents and profits. The court below rendered judgment for plaintiff, from which, and from an order denying a new trial, the defendant appeals.

Respondent contends that upon this appeal nothing can be considered other than the judgment-roll, for the reason that the appeal from the judgment was not taken within sixty days, and that the notice of motion for a new trial was given prematurely; but, as it is doubtful whether or not the respondent did not waive the irreg. ularity of the notice of motion for a new trial by filing amendments to the statement without objection, we will not consider that question, as it does not appear to be very important in the case.

J. O. Glenn, father of the plaintiff, died on Novem *579 her 11, 1878, seised and possessed of the land in question, leaving surviving him his widow, Harriet F. Glenn, and his daughter, Mary E. Glenn (now Mary E. Wills), plaintiff herein,…