Billings v. Sanderson

Citations

• 8 Mont. 201

Syllabus

<p>Pleading — Ejectment—Complaint.—The averment of the complaint as to plaintiff’s title, was, that the plaintiff “is seised and possessed of, and entitled to the possession of a certain tract or parcel of land.” A demurrer was filed on the ground that such an averment was uncertain, indefinite, and a mere conclusion of law, in not showing how the plaintiff' became seised and possessed of the premises, and on the ground that the complaint failed to state a cause of action. Held, that plaintiff’s title was sufficiently alleged. {McCauley v. Gilmer, 2 Mont. 20Í, cited.) Held, also, that inasmuch as the complaint alleged seisin and possession, and that while plaintiff was so seised and possessed of the premises, the defendants entered and ousted him, and also contained proper allegations as to time, venue, damage, and description, it properly set forth a cause of action.</p> <p>Same — Equitable defense — Mutuality of contract — Tender.—The answer set up as an equitable defense, that the defendants had entered upon the premises by mistake (the land being within the grant to the Northern Pacific Railroad Company, and not public land at the time), but that subsequently they held the same under a contract of purchase from said railroad company, by virtue of a certain circular issued by it to settlers on its lands as to how they could acquire title thereto. (The substance of the circular pleaded in the answer is contained in the opinion.) It also alleged that they had been in the open and notorious possession of the land in dispute, which was within the class of lands provided for in said circular, up to the time of this action; and that relying upon the terms of the agreement as contained in said circular, they had made extensive improvements thereon; that they were ready and willing to perform their part of the contract with said company; and that the plaintiff knew of their right at the time he bought the premises. A demurrer to the equitable defense set up in the answer