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(19 Nev. 174)



Filed September 30, 1885. 1. PLEADINGS AND PRACTICE-DISMISSAL.

Under section 151 of the practice act (Comp. Laws, 1212) an action may be dismissed, or a judgment of nonsuit entered by the plaintiff, at any time before

trial where no counter-claim has been filed. 2. SAME-DEFECT OF PARTIES-DEMURRER.

Under the practice act (Comp. Laws, ø 1103) ohjection to defect of parties de-
fendant should be taken by motion, and not made by demurrer.
Appeal from a judgment of the Second judicial district court,
Ormsby county, entered in favor of defendant.

R. M. Clarke, for appellant.
A. C. Ellis, for respondent.
BELKNAP, C. J. The last amended complaint, filed on the twenty-

, third day of November, 1882, states a cause of action for breach of covenant in a warranty deed, made jointly by defendant and Richard Kirman. Kirman was not a party to the action at the time the pleading was filed, and, as he had been made a defendant without leave of court, the complaint was stricken out upon motion. Afterwards it was amended, by stipulation, by striking Kirman's name therefrom as a defendant, and an order of court asked making him a party. The motion was overruled. Thereafter defendant demurred to the complaint, upon the ground of non-joinder of parties defendant, it appearing from the complaint that Kirman was a necessary party defendant. The demurrer was sustained. Plaintiff failed to amend his complaint, and judgment was entered against him.

The complaint was obnoxious to the demurrer. Plaintiff had, however, endeavored to cure the defect by asking for an order making Kirman a defendant. The refusal of the court to make the order is sought to be sustained upon the ground that, at an early stage of the case, Kirman was, with Leport, a defendant to the action, and upon motion of plaintiff was dismissed. It is claimed that the dismissal operated as a retraxit as to Kirman, and that the judgment resulting therefrom is a bar to further proceedings upon the cause of action stated in the complaint. Section 151 of the practice act (Comp. Laws, 1212) provides, among other things, as follows: "An action may be dismissed, or a judgment of nonsuit entered, in the following cases : First, by the plaintiff himself, at any time before trial, upon the payment of costs, if a counter-claim has not been made.

Here follow four other subdivisions relating to judgments of nonsuit and dismissal, not necessary to be particularly noticed, because the case in hand does not fall within their conditions, and the section concludes as follows: “In every other case



the judgment shall be rendered upon the merits.” The judgment ordered falls within the provisions of the first subdivision of the above section. It was rendered upon motion of the plaintiff, and, as said by counsel for respondent, “as matter of law there followed a judgment in favor of Kirman in this particular case for costs.” The judgment was, by the express terms of the statute, not upon the merits, and is not a bar to further proceedings. Van Vliet v. Olin, 1 Nev. 495.

Again, it is claimed that the judgment in favor of respondent ought not to be disturbed, because it is said it is correct, even though based upon the wrong ground; and, in support of this view, respondent contends that the district court had no jurisdiction to try the case made by the pleadings, and that respondent, therefore, should have recovered the judgment for costs which was rendered in his favor. The action was commenced in justice's court. The cause of action, as crudely stated in that court, was to recover $60, overpaid upon purchase of house and lot, and $50 damages arising therefrom. During the trial of the cause before the justice, it appeared that the determination of the action necessarily involved questions of title to real property, and thereupon he certified the cause to the district court. In that court the complaint was amended so as to change the cause of action. No reason has been suggested to us showing a want of jurisdiction in the district court to try the issue made. The court had jurisdiction of the parties. The action involved the question of title to real property,-a subject matter within the jurisdiction of the district court, and not within the jurisdiction of the court of the justice


may be that the jurisdiction was irregularly acquired, and that the amended complaint, which first contained the changed cause of action, should have been stricken out upon motion geasonably made. The point was raised by demurrer. .

We think that defects of this nature cannot be reached in this way, because the defect complained of does not fall within any of the grounds for demurrer enumerated by the practice act. Section 1103, Comp. Laws.

There has been no discussion of the question whether, under the provisions of the practice act, a plaintiff may amend his complaint by setting forth a new cause of action, and upon this subject we express no opinion.

It is ordered that the judgment of the district court be reversed, and the cause be remanded.

of the peace.


(67 Cal. 447)
ARGUELLO v. Bours and others. (No. 8,014.) ?

Filed September 21, 1885.

The legal title does not pass by a deed duly signed and acknowledged by the grantor, if, after delivery, the name of the grantee is inserted without any authority froin the grantor; nor will this rule be affected by reason of the fact that the grantee, whose name is thus inserted, had entered into possession of the land under a contract of purchase with the grantor, and had fully per


In an action of ejectment the party may plead as a defense that he is in possession under a contract which gives him the right of possession, and entitles him to retain it as against vendor's naked title, which is held by the latter dis

counected from any real interest. 3. EJECTMENT_EQUITABLE DEFENSE-How PLEADED.

Where the defendant in an action of ejectment relies upon equities as a defense to the action, or where he alleges them in a cross-bill, and bases on them a prayer for equitable relief, he must set forth the facts on which he relies in the answer as fully as it would be necessary to state them in a bill in equity, praying a decree for a conveyance of the legal litle. Department 1. Appeal from superior court, county of San Joaquin.

D. M. Delmus, for appellant.
Terry & McKinne and J. H. Budd, for respondent.

McKINSTRY, J. This action is ejectment, brought by plaintiff as derisee under the will of Jose R. Arguello, deceased; the complaint alleging that Jose R. Arguello was seized in fee of the premises at the time of his death. The answer admits that Jose R. Arguello was in his life-time, and up to the fourteenth day of September, 1876, the owner in fee of the premises, but alleges that on that day he sold and conveyed said premises to the defendant for the consideration of $4,000, which was the full value thereof, and which sum was on that day fully paid by defendant Bours to said Arguello, and that said defendant entered into possession of said premises under said sale and not otherwise; that said defendant is, and since said fourteenth day of September, 1876, has been, the owner in fee of said premises; and that defendant F. A. Ruhl, at the time of tine commencement of this suit, occupied and now occupies said premises as the tenant of the defendant Bours, and said Ruhl has and claims no right, etc., except as tenant, etc.

If the foregoing is to be construed as being, in legal effect, merely a denial of the averments of complaint, the court below erred in refusing to give to the jury the instruction asked by counsel for the plaintiff, wliich reads as follows:

“If the jury believe from the evidence that when the deed offered in evidence herein, and dated Septeinber 14, 1876, came into the hands of the de1 See note at end of case.

fendant B. W. Bours, it had already been signed and acknowledged by J. R. Arguello, and that the name of B. W. Bours did not then appear therein, ana that afterwards one Inglis, by direction of said Bours, in the absence of said Arguello, and without any authority from him, wrote the name of said Bours therein, and that thereupon said Bours took said deed and filed the same for record, the plaintiff is entitled to your verdict.”

Certainly the deed did not convey the legal title if Arguello never authorized the insertion of the name of defendant. That such authorization might be proved by circumstantial evidence does not affect the decision of the question. Nor is the decision of the question affected by the abolition of all distinctions between sealed and unsealed instruments. Civil Code, 1629. As to unsealed instruments, a blank could always be filled in by a person authorized by the maker. But the instruction above recited speaks of the absence of “any” authority from Jose R. Arguello for the insertion of the name of Bours. It is not necessary to determine whether the averment that Jose R. Arguello “conveyed” to defendant Bours on a certain day, and that the latter, since that day, has been “the owner in fee,” may be disregarded.

Some of the instructions given to the jury were confusing and erroneous. The court seems not to have decided whether the answer made an issue simply as to the plaintiff's legal title, or alleged equities which entitled defendants to retain possession of the demanded premises; but to have treated it as doing both. And the jury were authorized (so far as the court below could authorize the jury) to base their general verdict either on a finding that plaintiff did not have the legal title, or, if plaintiff had the legal title, that defendant Bours was entitled to retain the possession by virtue of an executed contract of sale and purchase. To reach the second question suggested (was the defendant in possession under such contract fully executed on his part?) the jury were authorized to construe, interpret, and determine the legal effect of an instrument in writing:

“If the jury believe * that said Arguello signed and acknowledged a deed for said property and sent the same to the defendant, omitting to insert the name of the grantee, that by reason of said omission the deed signed by the said Arguello was not sufficient to pass title," etc.

The court also charged:

"If the jury believe from the evidence that when the deed offered in evidence herein came into the hands of the defendant Bours it had already been signed and acknowledged by J. R. Arguello, and that the name of B. W. Bours did not then appear therein, and that afterwards one Inglis, by direction of defendant, in the absence of said Arguello, and without any authority from him, wrote the name of said Bours therein, and that thereupon said Bours took said deed and filed the same for record, then such deed, the court instructs you, would not be sufficient to pass the title, unless you further find from the evidence that the defendant purchased the premises therein named from said Arguello, paid the purchase price, and entered into and held possession thereof, claiming the same as his own by virtue of such purchase and payment.”

The jury were thus told, in effect, that although the name of Bours was inserted in the “deed” without any authority, express or implied, from Arguello, yet such deed would be sufficient "to pass the title," if the defendant purchased the premises, paid the purchase price, and entered into possession, etc. This must be construed as an instruction that, if defendant entered under a contract and had fully performed its conditions on his part, the legal title passed to him by the deed.

For these reasons the judgment and order must be reversed. Inasmuch, however, as another question has been discussed by counsel, we deem it proper to say that, under our system of practice, a defendant may plead, as a defense to “ejectment,” that he is in possession under a contract of purchase, the conditions whereof have been fully performed on his part; in other words, that he is in possession under a contract which gave him the right of possession, and that he is entitled to retain the possession as against the bare naked title of his vendor, which the vendor holds disconnected from any real interest. A perfect equity, united to the possession, is, under our system, equivalent for all purposes of defense to a legal title. Morrison v. Wilson, 13 Cal. 494. A vendee in possession under an executory contract, the conditions of which have been performed on his part, may avail himself of his equitable title as a defense to an action of ejectment brought against him by the holder of the legal title. Love v. Watkins, 40 Cal. 547. A mere equitable title to land, if of such a character as in equity entitles the holder to the possession, is a sufficient defense to an action for the possession brought by the holder of legal title. Willis v. Wozencraft, 22 Cal. 607.

But, whether a defendant relies upon his equities merely as a defense to the ejectment, or alleges them in a cross-bill and bases on them a prayer for equitable relief, the facts must be fully set forth in the answer; as fully as it would be necessary to allege them in the stating part of a bill in equity praying a decree for a conveyance of the legal title. Miller v. Fulton, 47 Cal. 146; Bruck v. Tucker, 42 Cal. 352; Kentfield v. Hayes, 57 Cal. 411. In Kenyon v. Quinn, 41 Cai. 325; and Cadiz v. Majors, 33 Cal. 288, the equities of the defendant were not pleaded. The dicta in the decisions of cases where the answer consisted of mere denials, that the equitable defense should be pleaded with a prayer for affirmative relief, are not to be regarded as authoritative. In an action of “ejectment,” by a plaintiff having the legal title, the defendant may rely on a contract of purchase which gave him the right of entry, and which has been completely executed and performed on his part, together with his continued possession. But all the facts on which he relies should be averred in the answer. In view of the intimation in Bruck v. Tucker, it will always be safer to aver (as was done in this case) that the price paid was a just and fair price, and the full value of the premises. Of course, under such circumstances, the defendant will usually pray for equitable relief. If

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