26 Wash. 435 | Wash. | 1901
The opinion of the court was delivered by
This action was. brought under § 5549-5551, Bal. Code. The complaint alleges, in substance, that the plaintiff was the lawful owner of the lands described; that the defendant, without having title or color of title, wrongfully and unlawfully entered upon said premises; that on May 13, 1899, plaintiff caused notice in writing to he served upon defendant, demanding possession of said property, and requiring defendant to remove therefrom; that defendant- refused and failed to remove therefrom, although more than three days have
Counsel for respondent argues that, because defendant did not deny the abstract of title, it was therefore admitted to be true. If this position is correct, it was not necessary to offer it in evidence. The abstract of title could do no more than show the line of plaintiff’s title, and, when the fact that plaintiff was the owner was specifically denied, it was not an admission to fail to deny the abstract, or the paragraph which referred to the abstract as appended to the complaint. The denial that plaintiff was the owner or entitled to the possession necessarily denied the abstract, which simply showed the chain of title by which plaintiff claimed. By the twelfth paragraph in the answer of defendant it is admitted that a patent to the lands in question was issued by the United States to the Tacoma Land Company. This paragraph also alleged that- this patent was and is null, void, and of no effect. ^Respondent now claims that the said answer,
The cause will he reversed and remanded, with in-' structions to the lower court to grant a new trial. The costs of this appeal in favor of appellant.
Beavis, C. J., and Dunbar, Fullerton, Anders, White, and Hadley, JJ., concur.