9 Nev. 161 | Nev. | 1874
Lead Opinion
By the Court,
This action‘is under the two hundred and fifty-sixth section of the Practice Act as follows: “An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an interest therein adverse to him, for the purpose of deter
In ruling upon the motion the district judge took the ground, which is insisted upon by counsel here, that by proof of possession or title, respondents had made a prima facie case, and that therefrom the burden of proof attached to appellant, to produce and sustain his claim.’ Whether the statute be taken by itself and upon its own language, or whether it be considered as an extension of pre-existing remedy to a new class of cases, and an allowance to one in possession of realty to quiet his title thereto, as against one only making adverse claim or without previous trial at law, the conclusion must be the same, that the decision of the district court was error.
The statute gives a right of action to any person in possession of real property; this possession is the base upon which the action is founded. Lyle v. Robbins, 25 Cal. 437; Sepulveda v. Sepulveda, 39 Cal. 13. To say then that admission or proof of the fact which gives the right of action, establishes prima facie the cause of action, is a clear begging of the question. It is true that Crook v. Forsyth, 30 Cal. 662, holds that way, and that there are several other California decisions which apparently lean in the same direction; yet a little thought will expose the fallacy of the position.
The New York statute differs from that of this State in the very material particular, that it places the burden of pleading and proof as to his claim upon the defendant in direct terms; and so advises him in the notice, which opens the proceeding, setting forth sundry matters and, among them, “ that the person to whom such notice is directed unjustly claims title to such premises, and that unless such person appear in the supreme court within the time, and assert his claim in the manner provided by law, he and all persons claiming under him will be forever barred,” &c. As to the assertion of claim it is provided, “If such person shall not appear and answer within forty days after the service of such notice, setting forth in his answer the title claimed by him
There is no analogy between this proceeding and an action under the statute of this State. The action granted by that statute must, no other procedure having been provided, be instituted and conducted as any other action, and the parties thereto must be governed by the same rules as parties to ordinary actions. By these rules the burden of proof must be fixed. That test imposes upon every plaintiff the duty to produce such evidence as will tend to sustain his cause of action, before the defendant is called upon to move. That, as has been heretofore shown, the respondents failed to do. This conclusion agrees with the only California case, in which the point has been fully raised, fairly considered, and made the turning point of a decision. Head v. Fordyce, 17 Cal. 149.
The order and judgment appealed [from are reversed and the cause remanded.
Dissenting Opinion
dissenting:
Under the pleadings and proofs in this case as presented by the record, I think that the burden of proof was upon the defendant to prove his adverse claim. The answer admits that the defendant claims an estate and interest in the property adverse to the plaintiffs. The defendant’s denial
The statute, under which this suit was brought, was intended not only to extend the remedy, so as to allow a party having the possessory title to real property to bring an action to remove any cloud upon his title, but also to provide a new remedy for cases where a party out of possession claims an estate or interest in the property, adverse to the party in possession and injurious to his rights. It confers a jurisdiction beyond that ordinarily exercised by courts of equity to afford relief in the quieting of title and possession of real property. Under the statute it is not necessary to delay suit until plaintiffs’ possession has been disturbed as in the action of ejectment. I think that the intention of the legislature in adopting this statute was to require the defendant, in actions like the one under consideration,' to produce and prove his title in order that the claims of the respective parties to the property might be forever quieted and determined. This view of the case is fully supported by all the decisions in California bearing upon this question, rendered upon a statute identical with the statute of this State. Merced Mining Co. v. Fremont, 7 Cal. 319; Curtis v. Sutter, 15 Cal. 262; Crook v. Forsyth, 30 Cal. 662; Pralus v. Pacific G. & S. M. Co., 35 Cal. 34; Sepulveda v. Sepulveda, 39 Cal. 17.
Burnett, J., in Merced Mining Co. v. Fremont, said: “If the holder of the adverse claim, out of possession, should delay bringing his suit, the party in possession can force him to produce his claim and submit it to the determination of the proper tribunal.” Chief Justice Field, in delivering the opinion of the court in Curtis v. Sutter, said: “It is
I consider the cases cited from New York, applicable to the case at bar. The prayer of plaintiffs’ complaint, “that the defendant be required to exhibit and show the nature of ' his claim,” is warranted by the statute and is, in effect, substantially the same as the statement in the notice required by the revised statute of New York. The case of Barnard v. Simms, 42 Barb. 308, was brought under that statute and it was therein, as here, contended that when a party was brought into court and made a defendant the plaintiff is bound to show that the defendant claims, or pretends to claim, such an interest as would constitute a cause of action under the statute. The court held that this was a'misapprehension of the objects of the statute and said, “if the defendant has a title he is bound to produce and prove it.” It was further held that the plaintiff was not required to show anything beyond his three years possession as provided for in the statute.
In my opinion, the judgment and decree of the district court was correct and ought to be affirmed.