87 Kan. 303 | Kan. | 1912
The opinion of the court was delivered by
Perkins brought suit to quiet title against Spaulding and others. Service was made by publication and judgment was rendered for the plaintiff by default. In due time Spaulding procured the judgment to be opened and filed an answer and cross-petition denying title in Perkins, alleging ownership in herself, alleging that subsequent to the decree Perkins had conveyed the land, which was worth $1200, by warranty deed, and praying judgment either for the title or for the value of the land. Perkins then dismissed his cause of action for affirmative relief. Sub
Spaulding had the right to dismiss her case so far as it involved affirmative relief against Edminston if she so desired. On being denied this right she was still entitled to the position of a defendant to Edminston’s answer and cross-petition and had the right to prove any facts which would defeat Edminston’s claim to relief against her.
Edminston failed to prove possession and failed to prove that he purchased in good faith relying on the
Without the payment of a valuable consideration on the strength of the decree Edminston could not be a purchaser in good faith as section 83 of the civil code requires, and one who asks affirmative relief, or makes an affirmative defense, on the ground that he has pur-’ chased real estate in good faith in consequence of a judgment quieting title based on publication, service and therefore subject to be opened up, has the burden of proof.
The j udgment is reversed and the cause is remanded for a new trial.