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that the rights claimed are untaxable, presents a good defense, although it does not deny all claim, title or interest in the property claimed. In an action for taxes against the administrator of a decedent, a denial that he had in his possession on the first Monday in March personal property of a value corresponding to that on which the assessment was based is merely a denial of the value of the property as fixed by the assessor, which can not be investigated in the action for the recovery of the tax, but could only be made the subject of an application to the board of equalization for a reduction of the tax.s

§ 3883h. Denial of presentation of claims. In an action upon a claim against an estate, an allegation that the claim, duly verified, had been presented, is sufficiently denied by an affirmative allegation in the answer, that the claim was not verified or presented as required by the statute, and such averment raises a material issue, sufficient to render erroneous a judgment for the plaintiff, upon the pleadings.

§ 38831. Conclusions of law in answer. In an action to enjoin defendants from extracting and removing ore from a certain mining claim of the plaintiffs, allegations of the answer to the effect that defendants were lawfully in possession of, and were engaged in working and mining the claim, under a contract between the plaintiffs and themselves, which entitled them to continue the working, but not setting forth the contract either in haec verba or according to its legal intendment, are merely conclusions of law, and evidence of the contract inadmissible.10

§ 3883j. Quieting title The facts which a pleading sets up determines its character. And when an answer alleged grounds for affirmative relief to the defendants in a suit to quiet title to mining ground, but no counterclaim or cross-complaint was filed, a judgment for affirmative relief to the defendants establishing and quieting their title to the property was sustained.11

affirmative relief to defendant.

7 State v. Central Pacific R. R. Co., 21 Nev. 94, 247; compare Same v. Same, 20 id. 372.

8 San Francisco v. Pennie, 93 Cal. 465; see § 2983, ante.

9 Derby v. Jackman, 89 Cal. 1; see § 428, ante.

10 Wheeler v. West, 71 Cal. 126; see § 3175, ante.

11 Perego v. Dodge, 9 Utah, 3.

§ 3883k. Matters not traversed nonsuit. Special matters constituting a good defense set up in an answer and not traversed may entitle the defendant to judgment of nonsuit.1

12

§ 38831. Correction of clerical error in answer. Where it is evident that the word "when" as used in one of the denials of an answer is a clerical error, and was intended to be "where," it will be so read, and a motion for judgment upon the pleadings based upon such clerical error, which loses its force by the correction of the error, is properly denied.13

§ 3883m. Invalid ordinance. A municipal ordinance, to the extent it may transcend the power vested in the body which passed it, is null and void, and may be taken advantage of by plea or answer in an action to recover the penalty.14

§ 3883n. Plea of forfeiture. The defense of a forfeiture of a mining claim through failure to perform the required work thereon is an affirmative defense, and must be specially pleaded where an opportunity is offered for so doing, and the burden of proof is always on the party claiming the forfeiture.15 But a plea of forfeiture of a mining claim need not under Code procedure aver specially that in consequence of the facts set forth, "the claim was forfeited." 16

§ 38830. Judgment on answer. Under Colorado procedure, every material allegation of an answer not controverted by a replication shall be taken as true, and the defendant may become entitled to judgment on his answer. But this right is waived where the defendant goes to trial as if the issues were properly made up.17

§ 3883p. Water rights-sufficient defense. In an action to determine the priority of water rights, and to enjoin the defendant from diverting the waters of a creek, an answer setting

12 Allenspach v. Wagner, 9 Col. 127.

13 Raker v. Bucher, 100 Cal. 214.

14 State v. Morris, 47 La. Ann. 1660; see § 833, ante.

15 Bishop v. Baisley, 28 Oreg. 119; and see Wulff v. Manuel, 9 Mont. 276; Mattingly v. Lewisohn, 13 id. 508; Quigley v. Gillett, 101 Cal. 462; Renshaw v. Switzer, 6 Mont. 464; Hammer v. Mining Co., 130 U. S. 291.

16 Bishop v. Baisley, 28 Oreg. 119.

17 Quimby v. Boyd, 8 Col. 194.

forth in substance that the creek in question is not a running stream during the irrigating season, and that during such season none of the waters flowing into said creek at the defendant's ranch could, in the course of its natural flow, reach the plaintiff's ranch fifteen miles below, states a good defense.18

§ 3883q. Joint plea as to one defendant. Under Colorado practice, the rigid rule in common-law actions that a joint plea insufficient as to one defendant is insufficient as to all is inapplicable to an equitable defense. 19

§ 3883г. Waiver by pleading to merits. The acceptance of an informal or insufficient undertaking in replevin, must be taken advantage of at the earliest practicable opportunity, failing in which, and by pleading to the merits, the defendant will be presumed to have waived his objection.20

§ 3883s. Foreclosure-judgment on pleadings. In a suit to foreclose a mortgage, where the plaintiff sues simply as a trustee, without naming the cestui que trust named in the note and mortgage, an answer alleging that the defendants have no knowledge or information sufficient to form a belief as to whether the plaintiff was trustee for the party named in the note and mortgage, or as to how or when any trust was created, or as to the nature of the trust, if created, but failing to deny the making, execution, and delivery of the note and mortgage, raises no material issue, and the plaintiff is entitled to judgment upon the pleadings.21

18 Raymond v. Wimsette, 12 Mont. 551.

19 Wilson v. Hawthorne, 14 Col. 530.

20 Morris v. Hanson, 2 Col. App. 154.

21 Scott v. Sells, 88 Cal, 599.

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The defendant answers to the complaint, and denies:

I. That plaintiff was at the time stated, or at any time, in the actual or peaceable or exclusive possession of the property described in the complaint, or any part thereof.

II. Denies that defendant broke into the premises of the plaintiff, as alleged, or in any manner, or at all.

III. Denies that plaintiff suffered any damage by such alleged breaking, or in any manner, or by any means, either as alleged in the complaint or at all. [Traverse the allegations of the complaint specially.]

§ 3885. Demand. A demand for the surrender of the possession, and a refusal for the period of five days, are essential in order to constitute a constructive forcible detainer, defined by the third section of the act.1

§ 3886. Easement. In forcible entry upon land an answer that the defendants entered as the servants of a specified railroad company, which had legally appropriated the injured property as the line of its road, would justify the entry and bar the suit.2

1 Cal. Code Civ. Pro., § 1160, subd. 2; Brawley v. Risdon Iron Works, 38 Cal. 676.

2 Green v. Boody, 21 Ind. 10.

§ 3887. Entry under law. The defendant may show that the lands described in the complaint are public lands of the United States, and that he entered on a portion thereof, specifically describing the part entered on, under and by virtue of the act of legislature prescribing the mode of maintaining possessory actions on public lands, and that the lands so entered on are lands to which the plaintiff has no right of property or possession, and no title to or interest therein, etc.3

§ 3888. Eviction. In an action by a landlord against his tenant, under the thirteenth section of the Forcible Entry and Unlawful Detainer Act, the latter may defend by showing an eviction under an adverse title in a judicial proceeding, of which proper notice was given to the landlord. Such a defense does not involve any question of title, the effect of an eviction being to dispossess the landlord as well as the tenant; and to relieve the latter from the obligation of his tenancy.5 The rule which estops a tenant from disputing his landlord's title does not prevent him from showing that the tenancy has been determined, and he may treat an eviction with notice, by one having an adverse title, as a termination of the tenancy, and thus resist any claim by the landlord, either for rent or possession. The notice by a tenant to his landlord of proceedings to evict him may be oral. An eviction of a tenant by title, both legal and paramount to that of the landlord, must of necessity determine the tenancy, and when the title of the landlord is set up in defense of the action, and the landlord appears and defends the action at the request of the tenant, and in his name, he can not be heard to say in a contest with the tenant that the tenant was not evicted by paramount title.8

§ 3889. General denial. Where in a case in Justices' Court the complaint verified alleges such demand, and the answer verified, instead of specifically denying the allegation, denies generally "each and every allegation" in the complaint, it was held that this general denial put plaintiff on proof of demand,

3 Buel v. Frazier, 38 Cal. 693.

4 Wheelock v. Warschauer, 21 Cal. 309.

5 Id.

6 Id.

8 S. C., 34 Cal. 265.

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