16 Kan. 515 | Kan. | 1876
Lead Opinion
The opinion of the court was delivered by
Defendant in error brought his action in the district court of Jefferson county for the purpose of quieting his title to certain premises. He filed a petition making plaintiff in error, Patrick M. Lyon and S. S. Cooper defendants, in which he alleged that he was the owner and held the legal title to the premises, that they were unimproved and unoccupied by any one, and that the defendants were “setting up and claiming some estate and interest in and to said real estate adverse to his estate and interest.” The prayer was, that the defendants might be compelled to show and disclose their title or interest, and that it be adjudged void, and his title declared to be full and perfect. The separate answer of defendant Douglass contained, first, a general denial, and then what is called a cause of action and counterclaim against the plaintiff and his co-defendants, in which he alleges that he is the owner in fee simple, and in peaceable possession of the premises, and that the plaintiff and the co-defendants claim some interest adverse to him, the nature of which he is ignorant of, but which he avers to be null and void. He then alleges the execution of three tax-deeds, two of which are set out in full, claims the benefit of the statute of limitations as to them, and closes with this prayer for relief:
*518 “Wherefore, by reason of the foregoing and other muniments of title, defendant prays that his title in and to said land, and his possession of the same, and his right to said possession, may be quieted, and that all claim and interest, or pretended claim and interest of said plaintiff may be determined and adjudged to be void,” etc.
To this answer, or at least to all except the general denial, a reply was filed, containing a general denial, and then pointing out specific objections to the tax-deeds. When the case was called the defendant objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action, which objection the court overruled, and defendant excepted. Was there error in this ? This it must be borne in mind is not an action under the statute. By § 594 of the code, a party in possession may maintain an action against any person who claims an adverse interest. But .possession in that section means actual possession. Eaton v. Giles, 5 Kas. 24. It would seem that this language was broad enough to cover any adverse claim, whether based upon color of title or not, though as that question is not before us we pass it for further consideration. Shepardson v. Supervisors, &c., 28 Wis. 593; Holbrook v. Winsor, 23 Mich. 394. Whether also it is necessary in a petition under that section to set out the nature of the defendant’s claim, and the grounds of its invalidity, or allege ignorance of its nature and pray a discovery, or sufficient simply to allege that the defendant claims an adverse interest, does not now demand a decision. See upon the question, Wales v. Grosvenor, 31 Wis. 681, and Holbrook v. Winsor, supra. Nor is this action brought under §118 of the Tax Law of 1868, (Gen. Stat., p. 1057.) That section authorizes an action to recover possession against any one placing a tax-deed on record. It is immaterial in such an action whether the holder of the tax-deed be in possession or not. Probably the statutory petition for the recovery of real estate would be sufficient in such case, and proof of the record of the tax-deed would be conclusive upon the matter of possession. Under that section a man in actual possession may maintain an action
Was the defect waived by a failure to demur, or cured by an answer setting up title in defendant? We think not. The objection to the petition is not, that it is not sufficiently definite and certain, in which case a failure to move that it be made definite and certain waives the defect, but'that it wholly omits certain essential elements of a cause of action. This a failure to demur does not waive. Nor does the answer help the plaintiff. True, if the parties had without objection gone to trial upon the pleadings, it might perhaps have been thereafter too late to object. It may be that they would have been held bound by the issues they had' once accepted and
Rehearing
THE CASE ON RE-HEARING.
The foregoing opinion was filed June 23d 1875, but as defendant in error, Nuzum, immediately filed a motion for a rehearing the opinion was withheld, (and mandate reversing the judgment below recalled,) to abide the argument and decision on said motion for rehearing. Said motion was argued in October 1875, and is now decided.
The opinion of the court was delivered by
An opinion having been filed in this case, in which this court held that the petition of defendant in error, plaintiff below, was insufficient, and (proper objection having been made thereto in the district court) that that court erred in proceeding to receive evidence and try the case, and therefore that the judgment ought to be reversed, the defendant in error has filed his motion for rehearing, contending, first, that we erred in our conclusions as to the essentials of a petition, and that the petition herein ought to be held sufficient; second, that, as the case was really tried upon the different titles set up by plaintiff in error, and all adjudged bad, this court should also examine those various titles, and adjudicate upon their validity; and third, that at least all the costs should not be taxed up against defendant in error, as the bulk of the case made is composed of the evidence offered by defendant below in support of his answer.
Further examination and reflection have only strengthened our conviction of the correctness of the views heretofore expressed, and therefore the motion for a rehearing must be overruled; or rather, (as a rehearing was ordered, the judgment of this court set aside, and the mandate recalled, in order to give us full time for reexamination,) the same judgment will now be entered, reversing the judgment of the court below, and remanding the case for further proceedings.
As to the second matter, we find that the defendant rested his claim to the land upon mere tax-deeds. One of these the court admitted in evidence, and the other eight it rejected. As to the one admitted, it found that it was invalidated by matters aliunde the deed, and thus adjudicated defendant’s
As to the remaining question, that of costs, we think the judgment of reversal should carry all the costs. We know of no reason why a party when sued may not resort to all the defenses he has to the action, or why he should be compelled to pay the costs incurred in presenting those defenses. He did not invite the litigation, and is not to be blamed for the number of his defenses, or charged with the costs of presenting them.
The judgment of reversal heretofore set aside, will be reentered, and cause remanded for further proceedings.