| Neb. | Jul 15, 1879
This case evidently was commenced, and has been proceeded with as one suitable for equitable cognizance, and accordingly was brought into this court by appeal. Indeed, the primary relief sought is the cancellation of a certain lease, alleged to have been obtained from the county commissioners, in fraud of the plaintiff's rights, and under which the defendant took possession of and now holds the premises in controversy.
But, whatever the views of the pleader may have been of the character of his suit, the more important inquiry is, do the facts alleged make a cause of action of any kind, either legal or equitable, or both legal and equitable, and over which the court had jurisdiction ? A petition cannot be properly measured by the
The material averments of this petition may be briefly stated thus: First, In June, 1873, the plaintiff purchased this land from the state of Nebraska, at a sale of unsold school lands lawfully held at the county seat of Saline county, paying at the time one-tenth part of the purchase price, and also an installment of interest on the residue, as required by law, and thereupon took immediate possession, and made valuable improvements thereon. That she has not sold, or in any way.disposed of her interest in the land thus acquired. Second. That in August, 1874, the defendant, by means of certain fraudulent misrepresentations, procured from the county commissioners of said county a lease of the same land, and thereupon took forcible possession, excluding the plaintiff therefrom, to her damage in the sum of $300.
Now, while it may very clearly appear that this lease was procured by false and fraudulent means, we fail to see wherein legally it can. do the least harm to the plaintiff, or why the aid of a court of equity is sought against it. From the plaintiff’s own showing, her right to the land existed for more than a year before the lease was given, and her possession was notice to the whole world of the nature and extent of her interest in it. Under the circumstances this lease could not possibly be of any avail, as against the plaintiff, in any proceedings concerning her right ■ to the land. We are of opinion, therefore, that the facts stated do not entitle her to any equitable relief whatever. Fraud without injury, either present or prospective, is no ground for the interference of a court of equity. 1 Story, Eq. Jurisprudence, § 203 (6th ed.)
But is enough alleged to warrant any other relief? In an action to recover real property, besides a proper
So we see in this petition that the plaintiff does not say, in the very language of the statute, that she “ has a legal estate therein,” but she gives a statement of facts, “ in ordinary and concise language,” concerning the land and her relation to it, from which, if true, it necessarily follows that she has. And the same is true of this pleading as to all the rest of what may be properly termed the statutory requisites of a petition for the recovery of real property. There are also suitable allegations to support a recovery of damages for the use of the premises during the adverse occupancy, if she succeed in her claim for the land.
Eeversed and remanded.