18 Kan. 399 | Kan. | 1877
The opinion of the court was delivered by
This case is badly mixed. Just what kind of action or actions the plaintiff intended to bring, we can hardly tell. But even if that problem were satisfactorily solved, still the case would not then be relieved from all difficulty. There are some inherent complications and intricacies equally difficult, of solution. The petition below i& drawn up in form as though it was intended to state only one cause of action; and yet the petition asks for several different kinds of relief, and such as are usually granted only in different kinds of action. It in substance asks that the plaintiff shall recover the undivided-half of certain real property of which he is not now in possession; that a certain tax deed on said real property be set aside and held for naught; that a certain supposed cloud upon the plaintiff’s title be removed;. that certain rents and profits received by the several defendants for the use of said property be accounted for by each of
“The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal, or equitable, or both, where they all arise*405 out of either one of the following classes: * * * Sixth, Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same.” (Gen. Stat. 645, 646.)
The question however still remains, as to whether the cause of action for partition may be united with the other two causes of action. This depends upon another provision of said section 83 of the code. Said section provides, that—
“The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal, or equitable, or both, where they all 'arise out of either one of the following classes: First, The same transaction, or transactions connected with the same subject of action.”
“ Sec. 36. Any person may be made a defendant, who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” .
“Sec. 41. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but*408 when a determination of the controversy cannot be had without the presence of others, the court must order them to be brought in.” •
“Sec. 616. .Creditors having a specific or general lien upon all or any portion of the property, [in an action for partition,] may be made parties.”
“Sec. 617. The answers' of the defendants [in an action for partition] must state, among other things, the amount and nature of their respective interests. They may also deny the interests of any of the plaintiffs, or any of the defendants.”
“Sec. 629. The court shall have full power [in an action for partition] to make any order, not inconsistent with the provisions of this article, [relating to partition,] that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
The judgment of the court below will be affirmed.