12 Kan. 112 | Kan. | 1873
The opinion of the court was delivered by
Plaintiff brought his action of ejectment against defendants, filing therein a statutory petition. Defendants answered, setting up several defenses. A demurrer to the fifth defense was overruled, and this is the error complained of. This fifth defense alleges substantially a contract of sale from plaintiff to one E. L. Atkinson, an entry into possession by said Atkinson, with the consent of plaintiff, and a possession by defendánts by and with the consent of Atkinson in his lifetime, and of his heirs since his decease. The contract of sale is not copied, nor its terms disclosed, but is referred to as on the records in the registry of deeds. There is no allegation of performance by Atkinson of the conditions of the sale. There can be no question but that this defense is very defective; but we think these defects should have been reached by motion, and not by demurrer. It alleges a contract of sale,' coupled with a surrender of possession. The contract not being disclosed, the surrender of possession will be presumed to have been in accordance with its terms. This would show a right of possession in Atkinson, and there is nothing to indicate that that right of possession has ever terminated.
The judgment of the district court will be affirmed.