3

terms. A defendant in partition is not entitled to have the action dismissed by reason of the force and effect of any defense which he may set up in his answer.*

§3832. Infant. Guardians ad litem, appointed to represent an infant in a case of partition, have power to defend for the infant solely against the claim set up for partition of the common estate. The proceeding for partition is a special proceeding, and the statute prescribes its course and effect; and though after jurisdiction has attached, errors in the course of the cause can not be collaterally shown to impeach a judgment, yet, so far at least as the rights of infants are involved, the court has no jurisdiction except over the matter of partition.

CHAPTER IV.

QUIETING TITLE.

§ 3833. Answer containing special denial, plea of Statute of Limitations, and cross-complaint for quieting title.

[TITLE.]

Form No. 920.

The defendant answers to the complaint:

First. For a first defense [deny specially each allegation]. Second. And for a further and separate answer and defense: I. The defendant alleges that the said plaintiffs claim that they are owners of said lots of land and premises in complaint and hereinafter described, and claim title thereto as heirs and devisees of deceased.

II. That said R. P., in his lifetime, to-wit, in the month of 18.., conveyed, by a good and sufficient deed, to defendant's predecessors or grantors, in fee, the lots or tracts of land hereinafter described, and that after the making and delivery of said deed, said R. P. never had, nor have the plaintiffs or any of them since had, nor have they now, either as

3 De Uprey v. De Uprey, 27 Cal. 331; 87 Am. Dec. 81. 4 Id.

5 Waterman v. Lawrence, 19 Cal. 210; 79 Am. Dec. 212.

6 Id. Cross-complaint.— A so-called cross-complaint in an action for partition which is only a repetition of the answer which alleges exclusive ownership and exclusive possession by the defendant requires no answer from the plaintiff. Banning v. Banning, 80 Cal. 271.

heirs or devisees of said R. P. or otherwise, any right, title, or interest in or to the said lands, or any part thereof.

III. That the said deeds so duly executed by said R. P., whereby the title of said R. P. to said lots of land was vested in this defendant's predecessors or grantors aforesaid, were never recorded or filed for record, and were destroyed by fire on or about the

........

day of

18...

Third. And for a further and separate answer and defense: The defendant alleges that he has been in the quiet and peaceable possession of the pieces or lots of land hereinafter described, holding and claiming the same adversely to the said plaintiffs, and adversely to all other persons, for more than five years before the commencement of this suit; and that neither the plaintiffs nor any of them, or either of their ancestors or ancestor, predecessors or grantors, was or were seised or possessed of the said lots of land, or either of them, or any portion of the same, within five years before the commencement of this action.

Fourth. And for the cross-complaint, the defendant alleges: I. That he is now, and was at the commencement of this suit, and for more than five years before that time, and from thence up to that time had been, in the quiet and peaceable possession and occupancy of all those certain lots or pieces of land situate, lying, and being in the city and county of being the same lots in the complaint described, and bounded and described as follows, to-wit [give description of land].

II. That the said plaintiffs have not, nor have either or any of them, any right, title, interest, or right of possession in or to the said described premises, or any part thereof; that the said plaintiffs claim to have some right, title, interest, or right of possession in or to the said above-described pieces and lots of land adverse to defendant, and claim that they are owners thereof, and claim title thereto, as heirs and devisees of R. P., deceased, as hereinbefore, to-wit, in the second averment of the answer herein, is set out.

III. That said R. P. duly conveyed to defendant's predecessors or grantors, in fee, the lots or tracts of land herein before described, as in the second averment of said answer set out, and defendant alleges that the said claim of the said plaintiffs to said lots of land, whatever it may be, is against the rights of this defendant, and is without foundation, and is a cloud upon defendant's title to said land and premises.

Wherefore defendant prays that the said plaintiffs, and every one of them, be adjudged to produce and bring forward any and all claims which they or either of them have or make upon the above-described lots, or any part thereof; and that the same may, by the decree of this court, be declared invalid, and of no effect, and that the said plaintiffs be perpetually restrained and enjoined from setting up or making any claim to or upon the said premises; and that all such claims be quieted; and that this defendant be declared and adjudged the owner and of right in the possession of the said premises, and every part thereof, against any claim of the said plaintiffs, or any of them; and that plaintiffs be adjudged to execute to this defendant a deed for said lots hereinbefore described, and in default so to do that a commissioner be appointed by this honorable court for that purpose; and for such other or further order, decree, or judgment as may be just and equitable to defendant.

§ 3834. Equal equities. Where, in an action to quiet title to land, both parties show an equal equity, but one has also the legal title, he who has the legal title must prevail.1

§ 3835. Insufficient defense. Where the defendant, in an action to quiet title to a mining claim on the public lands, set up in a supplemental answer both abandonment and forfeiture by the plaintiffs of their asserted title and possession to said claim after suit commenced, but failed to set up any subsequently-acquired rights therein by defendants, it was held that said matters were unavailing to defendant as defenses to the action.2

§ 3836. Parties. The plaintiff filed her bill to remove a cloud upon her title to land, created by her husband's deed to one of the defendants, and she joined in the bill three other defendants, one of whom had bought a portion of the land from the plaintiff and her husband, and two of whom held a mortgage upon the property executed by them; it was held that the latter were unnecessary parties, as the grantee in the deed and those claiming under him were the only parties necessary to the complete adjudication of the case.

1 Maina v. Elliott, 51 Cal. 8.

2 Pralus v. Pacific G. & S. M. Co., 35 Cal. 30.

3 Peralta v. Simon, 5 Cal. 313.

§ 3837. Possession. If the answer in an action to quiet title admits plaintiff's ownership in fee simple and possession, the rightfulness of the possession follows the admission, and even if plaintiff went into possession by leave of defendant's tenant, he is not estopped from denying defendant's title.* If a complaint to quiet title avers plaintiff's possession, and the answer admits the averment, this admission is not avoided by a special averment that plaintiff obtained possession by collusion with defendant's tenant.5 In an action to determine an adverse claim, the objection that the plaintiff had not, at the commencement of the action, actual possession of the premises, must be distinctly taken by the answer, and before going to trial on the merits, or it will be waived.

4 Reed v. Calderwood, 32 Cal. 109.

5 Id.

6 Jones v. Collins, 16 Wis. 594. Special answer. The defendant in an answer to quiet title may specially plead that the plaintiff has only a lien, or any interest less than he claims, and that the defendant has an equitable title or any interest in the land, either paramount or subordinate to that of the plaintiff, and the decree of court should declare the rights of the parties in the property accordingly. Pennie v. Hildreth, 81 Cal. 127. General denial.— A general denial in an answer to an unverified complaint by an administrator in an action to quiet title puts in issue the plaintiff's title and position as administrator, and a demurrer to such answer can not properly be sustained. Id. Another action pending.- An allegation in the answer that another action is pending between the parties for dissolution of a copartnership and settlement of accounts is immaterial, and can not bar the right of the plaintiff to have his title or interest in the property in controversy determined in an action to quiet title. Id. Burden of proof.— In an action to quiet title, the burden rests upon the plaintiff to show title in himself, and if he fails to make out a case, he is not entitled to recover. Winter v. McMillan, 87 Cal. 256; 22 Am. St. Rep. 243. Cross-complaint.- A cross-complaint is proper in such action, when it seeks to enforce an equitable title against the plaintiff as the holder of the legal title. Id. In an action under the statute of North Dakota (Comp. Laws, § 5449), to determine adverse "estates and interests" in real estate, the defendant may by answer, in addition to a denial of the plaintiff's title, allege facts which show title in himself, and ask that such title be quieted and confirmed by the court. Such new matter, when properly pleaded, constitutes a counterclaim, within the meaning of subdivision 1, section 4915, Compiled Laws, and constitutes a cause of action in favor of the defendant, and against the plaintiff, which is connected with the subject of the action." Power v. Bowdle, 3 N.

66

The defendant answers to the complaint:

That he disclaims all right, title, and claim to any estate of inheritance or of freehold in the premises described.

The defendant answers to the complaint, and alleges:

I. That defendant is not guilty of the waste and destruction aforesaid, in manner and form as the said plaintiff hath in his said complaint alleged, or in any manner, or at all.

II. That defendant does not hold the said premises under and as tenant to the said plaintiff, in manner and form as the plaintiff in his complaint hath alleged, or at all.

said plaintiff hath in his said complaint alleged, or in any manner, or at all.

Under a lease containing a clause for the purchase of the demised premises within a specified time, the Statute of Limitations does not commence to run against an action for waste until the privilege is extinguished by lapse of time. In such action for waste committed by such tenant, it is no bar to plead that the landlord had brought an action for the purchase price stipulated in the lease, which action was dismissed because the plaintiff therein failed to show a compliance with the contract on his part, by a tender of the deed at the proper time, the remedies not being concurrent.2

Dak. 107. To such counterclaim, if not demurred to, the plaintiff must respond by a reply, and, if none is served, the defendant may move for judgment. Id.

1 Powell v. Railroad Co., 16 Oreg. 33.