7 S.D. 148 | S.D. | 1895
This is an appeal from an order of the circuit court of Edmunds county overruling a demurrer to the complaint. Respondent brought the action to quiet the title to certain real estate in the complaint described. It is alleged: First* that plaintiff “is the absolute and unqualified ower in fee simple” of the land described; and, second, that the defendant “wrongfully and without right claims an interest in said land by virtue of an alleged purchase thereof at tax sale; that said claim is unjust and wrongful, and without any foundation in fact or law; that said claim is made adversely to said ownership and title of said plaintiff.” To this complaint defendant demurred, on the ground that it does not state facts sufficient to constitute a cause of action. From an order overruling the demurrer the defendant appeals.
Appellant contends that section 5449, Comp. Laws, under which this action is brought, does not authorize an action to quiet title against one who does not claim “an estate or interest in real
.. Appellant further contends that the complaint is demurrable: because it does not set out the facts upon which the invalidity of the tax sale and certificate is claimed. This precise question has been ruled upon in several cases, and a complaint like .this held" sufficient. Ely v. Railroad Co., 129 U. S. 291, 9 Sup. Ct. 293, went up from Arizona. The question and conditions were entirely like those now before us. The court said: “An allegation that'the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer, or to allegation and proof of the estate or interest which he claims,. the nature of. which must be known to him and may not be known to the plaintiff.’ ’ To the same effect, see Amter v. Conlon (Colo. App.) 32 Pac. 721; Railroad Co. v. Oyler, 60 Ind. 383; Mining Co. v. Marsano, 10 Nev. 370, — overruling á. prior contrary holding in Blasdell v. Williams, 9 Nev. 161. McDonald v. Early (Neb.) 17 N. W. 257, seems to hold a different view, but even under that authority .the complaint"in. this case would not necessarily be bad, for it does"