Kansas Pacific Rly. Co. v. McBratney , 12 Kan. 9 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

Plaintiff in error moves for a rehearing, and on that motion insists that the petition filed in the district court was defective in that it alleged an equitable estate without disclosing how the title was derived; and the case of Gibson v. Chouteau, 13 Wallace, 92, is cited as authority. Whatever may be the rule elsewhere, it does not seem to us there can be any question under our statute. Sec. 595 of the code, (Gen. Stat., 747,) reads: “In an action for the recovery of real property it shall be sufficient if the plaintiff state in his petition that he has a legal or equitable estate therein, and is entitled to the possession. * * * It shall not be necessary to state how the plaintiff’s estate or ownership is derived.” The language differs from that in similar sections in the statutes of most if not all other states, and it is difficult to see how it could be made plainer against the proposition of the plaintiff. Of course, what kind of equitable title will carry with it the right of possession, and what the nature and amount of evidence neceésary to establish such title, are questions not involved in the consideration of a sufficiency of a statutory pleading like this. The statute says this form of pleading is sufficient.

A second point presented is, that a disclaimer is not a proper pleading in an action of ejectment, and when made should be treated as denying possession, and tendering an issue on that question. We agree with counsel that it is a novel pleading in such action, and we were not a little troubled on the original consideration of this case to determine the effect of such an answer to this statutory petition. It does not deny title, and of course the rule that a denial of title admits possession would not apply. It does not admit possession, but in effect denies it. There would be some plausibility in treating it as tendering an issue on the question of possession. But the statute comes in and attempts to determine the effect of a formal disclaimer. That is, to give to the party disclaiming his costs, unless for special reasons the court decides otherwise. (Code, § 587.) It would seem from this that a disclaimer was not to bit treated as raising any issue for trial, or interposing any objection to the granting of the relief prayed for, but as simply asking to be relieved from all costs. If a party desired a trial on the question of possession, a denial of possession would present the issue, and upon that issue the verdict would carry costs as a matter of right. If he filed no answer, the default would give to the plaintiff costs, as well as the specific relief prayed for. By a disclaimer he would not prevent the plaintiff from obtaining the relief prayed for, but would save himself from all costs. Such seemed to us the purpose of the legislature in the section cited, and though the matter be not free from doubt we are disposed to adhere to our former ruling.

Application is also made to us to make an order directing the district court to permit J. P. Usher to be made a party defendant, with leave to file answer. Upon that a certified copy of the deed from the plaintiff in error to Mr. Usher, made intermediate the filing of the petition and the answer in the district court, is presented for our consideration; so that it appears that the legal title, if in the company at the time of the commencement of the suit, was thereafter transferred to Mr. Usher. If it did not seem perfectly clear to us that the rights of Mr. Usher were not affected by this judgment, we should be disposed to grant this application. But it appeared on the trial, from the undisputed testimony, that the possession of the land had been transferred to Mr. Usher long anterior to this action, and that as between him and the company, he held a full equitable title. Under these circumstances, neither the default, nor the disclaimer of the party holding the naked legal title, could cut off or impair his rights. The whole proceeding is res inter alios aeta. Of course, a judgment for possession against a party not in possession cannot be used to disturb one who is in possession.

The motions of the plaintiff in error will be overruled.

All the Justices concurring.