26 S.D. 29 | S.D. | 1910
This action was brought by the plaintiff, the administrator of the estate of one Thompson, to quiet title to certain lands as against the claims of the defendant. The complaint sets forth the title of Thompson; that at the time of death
Appellants’contend that * the complaint is insufficient under chapter 29, § 675, Rev. Code Civ. Proc., which provides: '“An action may be brought by any person against another who- claims any estate or interest in real property adverse to, him, for the purpose of determining such adverse claim” — it being the claim of appellants -that there is no allegation to the effect that defendants claim any estate or interest adverse to the plaintiff. It will be noticed from the summary of the complaint given above tiiat there was no direct -allegation' that defendants claimed an interest adverse to- the plaintiff; the allegation of said complaint being that the defendants claim- an estate or interest adverse to the title which plaintiff alleged had passed to the heirs .of said Thompson. Under the statutes of this state,. the right of possv session of all real estate passes, upon death of the owner, to his personal representative' for the purposes of administration, and during the course of administration is under the control of ’ such representative. We think that under such a statute, such represen
It is also contended by the appellants ’that the plaintiff, as administrator, has no^ authority to bring an action to quiet title to real estate. Under the statutes of some states, i't is expressly provided that the party bringing an action to quiet title must be one who is possessed of some right; title, interest, or lien in, to, or against the premises in question. Under the section of our Code above quoted, it will be seen that no such limitation is made by the express language of the statute, yet we aré inclined to think that such an action can only 'be' brought by a party having' some right or interest in or to the property. In addition’to what we have above stated in relation to the interest of an administrator in -and to the real estate of his intestate,' we would cite the holding of the North Dakota Supreme Court in the case of Blakemore et al. v. Roberts, 12 N. D. 394, 96 N. W. 1029, wherein is found an exhaustive consideration of this question,"and in which’ case reference is made to the statutes of that state, which statutes, while not worded exactly -the same as the corresponding statutes of this state, yet are the same in substance. We also, cite the case of Ladd v. Mills, 44 Or. 224, 75 Pac. 141, and call especial attention to the case of Pennie v. Hildreth, 81 Cal. 127, 22 Pac. 398, wherein the court used the following language: .“The first pqint made by the appellant is that an action to quiet title to' real estate
It thus appears clearly that the administrator, as such, hás a right to bring this action. This being true, the first two grounds of demurrer were not well taken. The allegation' of the complaint to the effect that the defendants claim title adverse to the heirs being equivalent to an allegation that the defendants aré claiming title adverse to the interests of the plaintiff in said lands and the other allegation of the complaint being concededly ample, the third ground for demurrer was properly overruled.
For the above reasons, the order of the trial court overruling the demurrer herein is in all things affirmed.