34 Wash. 175 | Wash. | 1904
Respondent moves to dismiss this appeal for the reason that the notice is not sufficient. The part
Motion is also made to strike the brief of appellants and affirm the case, because each error is not clearly pointed out as required by Rule 8. But one error is relied upon, viz.: that the trial court compelled the appellants to elect between two alleged causes of action, and this is the only question discussed- on the appeal. It is true that this error is not stated separately from the “statement of facts,” but it is stated clearly at the close
The complaint in form attempts to set out two separate causes of action. For the first it is alleged, that one Edward Quinn died in 1892, seized of certain described real property in Spokane county; that title thereto passed by descent to one Bridget Brown, and upon her death in 1901 it passed to the plaintiffs, her sole heirs; that in 1895 a mortgagee of the premises, under a mortgage made by said Quinn, commenced an action to foreclose his mortgage, making no one a party but the administratrix of Quinn’s estate; that the foreclosure proceedings, which are set out in full, culminated in a judgment of foreclosure and a sale of the mortgaged property to the mortgagee; that the defendant claims some title to the premises by virtue of mesne conveyances from; the purchaser at said sale; that this claim, and the foreclosure proceedings and conveyances upon which it is based, are a cloud upon plaintiffs’ title. It is not alleged in this cause of action who was in possession of the property.
The complaint then, “for a further and separate and second cause of action,” alleges substantially, that plaintiffs’ ancestor, Bridget Brown, was, on December 2, 1895, the owner and in possession of the property described (the same as in the first cause of action), and that in 1900 the defendant took possession of said realty without right, and has ever since held it; that in 1901 said Bridget Brown died, and that plaintiffs are her sole heirs and are entitled to possession of said realty; that plaintiffs have been damaged in the sum of $300 on account of being deprived of said real estate. The prayer is for a decree quieting title to the realty in plaintiffs, for $300 damages, and for general relief.
The only question presented on this appeal is whether or not the court erred in requiring plaintiffs to elect between the causes of action stated, and to proceed upon one without regard to the other. The court below evidently sustained this motion upon the theory that two separate inconsistent causes of action were stated in the complaint. In Povah v. Lee, 29 Wash. 108, 69 Pac. 639, this court held that a party out of possession of real property could not maintain an equitable action to remove a cloud and quiet title to such realty, but the remedy of a person out of possession was to bring an action under the provisions of §§ 5500-5508, Bal. Code, for possession of the property, and in that action set up his title; so that the court in one action may determine the superior title, both legal and equitable, of the contending parties.
Under these statutes it is not necessary for a plaintiff to split up a cause of action into legal and equitable causes and state them separately. It is only necessary to state the facts. Under the rule in Povah v. Lee, in order to state facts sufficient to constitute an equitable cause of action to remove a cloud from the title, it is necessary to allege possession in the plaintiff, or that the property was not in the possession of any one. In order to state a cause of action for possession of realty, it is necessary to allege that the plaintiffs are wrongfully and unlawfully
This court has said, under the liberal rules of pleading contained in the statute, that “if the plaintiff sets forth facts constituting a cause of action and entitling him to some relief, he is not to he turned out of court because he has misconceived the nature of his remedial right.” Damon v. Leque, 14 Wash. 253, 44 Pac. 261; Watson v. Glover, 21 Wash. 677, 59 Pac. 516; Yarwood v. Johnson, 29 Wash. 643, 70 Pac. 123. We might add that the substance of the facts stated in a complaint will control the form of it, and the court will construe all the facts stated without reference to the number of causes of action
The judgment of dismissal is therefore reversed, with instructions to the lower court to reinstate the action for further proceedings. Since the error herein was the result of the confused condition of appellants’ pleadings, the costs of the appeal should abide the result of the action in the court below.
Fullerton, C. J., and Halley, Anders, and Dunbar, JJ., concur.