55 Kan. 638 | Kan. | 1895
The opinion of the court was delivered by
I. On March 21, 1887, John H. Allen filed his petition against John Neve and Wealthy A. Neve, alleging that he was and for a long time had been in possession of northeast quarter of southwest quarter, and northwest quarter of southeast quarter of section 27, township 6 south, of range 9 west, except the 13 acres, more or less, included in the town site of West Hampton; that he claimed title in fee to the premises, and that the defendants claimed an estate or interest therein adverse to the plaintiff, but that said claim of the defendants was without any right, title or interest whatever in said premises, or any part thereof, and praying the court. to quiet his title to said premises. Service by publication was attempted in the case, but on October 8, 1887, such service was set aside by the court, and thereupon Frank J. Kelley, J. 0. McNerney and D. M. Thorp were, on their own motion, made parties defendant, and they were allowed to answer, and the case was continued for service as to John Neve and Wealthy
The plaintiff’s replies to said answers were to the effect that on April 21, 1875, Milton Spencer, Maria L. Huntington and AVealthy A. Neve were the owners of said land as heirs of D. AV. Spencer, deceased ; that on said date said Milton Spencer and wife, and the said AVealthy A. Neve and husband, sold their several
The defendants below", who are plaintiffs in error, claimed in the court below that the replies were inconsistent with the petition, and constituted a departure from it; that the petition stated a cause of action to quiet title, while the replies set forth grounds for specific" performance; and they moved the court to compel the plaintiff below to elect whether he would proceed in the action to quiet title or for specific performance, but the court overruled this motion, holding that the pleadings stated only a cause of action to-quiet title. Counsel controverts this position with great earnestness and at much length. They refer to-
The action was doubtless intended to be brought under § 594 of the code of civil procedure. All that was necessary to allege 'was that the plaintiff was in possession, by himself or tenant, of the real property described; that the defendants claimed an estate or interest therein adverse to him, and asking for the determining of such 'adverse estate or interest. It was averred in the petition that the plaintiff was the owner in fee as well as in possession. The answers were to the effect that Wealthy A. Neve was the fee-simple owner of an undivided one-third interest, and the replies must be taken to concede that she did hold the naked legal title to such one-third interest, the plaintiff claiming, however, that she had no equitable title whatever to the premises, such being wholly in him. We do not think, however, that this concession changes substantially the claim made in the petition, which need not have contained anything about the nature of the title, whether legal or equitable. The replies met fully the averments contained in the answers, substantially admitting their truth as to the legal title, but stating facts showing that it would be inequitable for the defendants to set up such naked legal title to defeat his full equitable claim to the whole premises. Neither do we think that the replies stated a cause of action for specific performance. It is not averred that Wealthy A. Neve and husband entered into an agreement, either in writing or by parol, to convey the premises to Catherine A. Arthur-; but the substance of the allegation in this respect is,
II. It is further contended that by virtue of the admission in the replies that the legal title to the extent of an undivided one-third interest was in Wealthy A. Neve, and, as the possession of one tenant in common is the possession of all, she and her grantees must likewise be deemed in possession, and therefore the action to quiet title will not lie. But a tenant in common may oust his cotenant, and the latter may have his remedy therefor by ejectment. (Scantlin v. Allison, 32 Kas. 376, 378, 379.) In this case, however, it is averred in the answer that the plaintiff was in possession of the whole tract, and. had been ever since February 11, 1880, denying any right in the defendants, and this is substantially admitted by the replies. Now, as the plaintiff was in possession under a legal title to the undivided two-thirds and an equitable title to the whole estate, it cannot be said that Wealthy A. Neve was in possession merely because she had the naked legal title to an undivided one-third. Possession under a full equitable title is sufficient to give the plaintiff a standing in court. Section 594 of the code is broad and general in its terms. A person in actual possession under claim of title may have his rights adjudicated as against any adverse claimant. (Giltenan v. Lemert, 13 Kas. 476.)
'III. We deem it unnecessary to discuss the evidence. It strongly tends 'to prove the substantial allegations
The defendants, Kelley, McNerney, and Thorp, received their deed on or about May 23, 1887, and they stand in no better position than the Neves. It is true they did not know of the transaction between the Neves, the Spencers, and the Arthurs, in 1873, whereby James Arthur was to have this 80-&cre tract and an interest in the mill property in consideration of the transfer by him of a sawmill at Cawker City, a pair of corn-buhrs and a quarter-section of land near Cawker City, but they knew that the plaintiff below was in possession of the premises, claiming full ownership ; that his grantor had a deed from Milton Spencer and wife, purporting to convey the full title; and that suit had been commenced by the plaintiff below for the purpose of quieting his title as against the Neves, whose adverse claim was alleged to be groundless ; for they had examined the petition in this case before the delivery of the deed to them. They paid their money and took their chances, well know;-ing that the title Avas in dispute.
The judgment of the district court will be affirmed.