Lead Opinion
This is an action to quiet title brought by defendants in error as plaintiffs below to quiet title to realty of which they allege that they are in possession, and to which they claim title in fee. To this petition there was a demurrer on the ground that the allegation that plaintiff claims title in fee is not sufficient, but that the nature of the title shоuld be .set up. The authorities cited by plaintiff in error are generally as to what evidence is necessary to prove title. The evidence need not and should not be pleaded. The petition is in a form which is well approved by the best authorities. The demurrer was properly overruled. Defendant defаulted in failing to plead further in the time given by the court for that purpose, which was twenty days from June 1, 1893. On the 7th day оf October the cause was continued by consent of parties until the next term. Afterward, on the 11th day of November, and during the same term, judgment was taken on the default.
Judgment affirmed.
Rehearing
ON PETITION FOR REHEARING.
The petition for rehearing sets up several errors of this court in its short opinion delivered on the original hearing in not understanding the authorities cited nor the arguments offered by plaintiff in error. As suсh errors do not go to the merits of the case, they will not be discussed.
The brief on petition for rehearing, however, states that plaintiff in error merely insisted that the proceedings of the trial court in rendering judgment on the default after continuing the cause for the term, “ could not prevent the plaintiff in error from hаving the ruling of the court below upon the demurrer reviewed by the supreme court, and could not prejudice the plaintiff in error before the supreme court.” It is thus apparent that it is the opinion of cоunsel for plaintiff in error that the only question before this court is, “Did the trial court err in overruling the demurrer to the petition of plaintiff in error ? ’ ’ This is also our opinion, and we did consider that question. As it seems that we havе failed to make our meaning clear,
“1. That the plaintiffs are nowand for a long time have been, and are entitled to be, in the possession of certain real property, situated, lying, and being in the county of Laramie аnd State of Wyoming, known and described as follows, to wit: Lot numbered one.in section numbered twenty-three, in township numbered fourteen, north of range numbered sixty-seven, west of the sixth principal meridian.”
“ 2. That the said plaintiffs claim title in fee to the said premises, and that the defendant aforesaid claims an estate or intеrest therein adverse to the said plaintiffs.”
. “3. That the claim for said defendant is without any right whatever, and that thе said defendant has not any estate, right, title, or interest whatsoever in said land or premises, or any pаrt thereof.”
The statute under which this action was brought is the following:
‘ ‘ An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate, or intеrest therein adverse to him, for the purpose of determining such estate or interest. ’ ’ (Rev. Stat., Sec. 2985.)
Under such a statute, the following is an approved form of petition : ‘‘ Plaintiff is in actual possession of thе following-described real estate situated in said county of . . . (describe the real estate).”
“ The defеndant claims an estate or interest therein adverse to plaintiff’s right.” This is followed by prayer for relief. Bаtes on Code Pleading, 659. The petition in the case at bar contains all this and more. See also Kinkеad’s Code Pleading, Sec. 1039, and notes.
The case of Herrick v. Churchill,
Tbis opinion is open to criticism, but it does not sustain tbe position of plaintiff in error, but tbe contrary. A further discussion of tbe cases would seem to be unprofitable. ' They do not sustain tbe position of plaintiff in error in attacking tbe petition by demurrer.
Rehearing denied.