| Iowa | Oct 13, 1858
— There cannot be a doubt, we think, but that the defendant’s answer is defective in substance, in the first and main portion of it; and the reason for this opinion is contained in the plaintiff’s first cause for demurrer — that is, that the defendant cannot set up a title for the plaintiff and plead to it, and compel the plaintiff to follow him. If the petitioner should take issue upon the allegation that such is his title, it would be but an immaterial issue, trying the question hy what line of title he claims, and. not the strength of the title. The plaintiff must be at liberty to offer such proof, or source of title, as he may h/ive. The defendant’s duty is to admit or deny the plainfiff’s claim, and to set up his own. Upon these respective claims and denials, they proceed to trial.
This answer is of so unusual a character, that we are hardly prepared to say, what rules of pleading it violates —it is not readily classified. There is one, however, which clearly it does not meet. It does not directly an
The grounds alleged as rendering the decree invalid, are not now considered. When they come up properly, the question will be, whether they do render the judgment-void, as claimed; and then some of them might be found affecting certain parties only, and some rendering it not binding on certain ones, for want of notice, or because they were not made parties, or whatever the reason might be, but yet going to a part only. The plaintiff does not demur to the specific reasons assigned for its invalidity, but proceeds upon the supposition that the answer is, in the above respect, legally bad, even admitting the truth of the facts averred, and the effect of them assumed by defendant, if property pleaded, and it is upon this ground that we concur in sustaining the demurrer. The defendant had not arrived at a position in his cause, in which he could plead those facts. He cannot take it for granted that the plaintiff has one, and only one, basis of claim, and set this up for him, and then plead to it.
The remaining matters alleged in the answer, are also defectively pleaded in substance. The defendant do es not state what he claims, whether a fee simple or otherwise. He does not state distinctly that he asserts his right by virtue of an adverse possession. But admitting thin particular to be sufficient, still, he does not aver what 1 ength of time and possession he relies upon. This part of the answer fails in every requisite of form and substance. In the next step, he claims to hold, as we suppose it moans, by a title derived from a half-breed Indian, not naming him. He is not obliged to set out the detail of his title, but only what he claims; but if he undertakes to show Ais title, he should give it such definiteness, that the advc- rsary may be informed, and may be enabled to meet if'. The claim under a half-breed Indian, leaves his opponent' loosely afloat and in darkness. If he aims to deny, he does not know what he is denying. The third ground for defendant’s supposed title, is under the occupying claim
The answer is wanting in material matters, and the court was correct in sustaining the demurrer. The judgment is therefore affirmed.