Frum v. Weaver

Citations

• 13 S.D. 457
• 83 N.W. 579
• 1900 S.D. LEXIS 179

Syllabus

<p>1. A complaint alleging that plaintiff is the owner of certain land, and is entitled to the immediate possession thereof, and that defendants are in possession claiming some right, title, or interest therein, states a cause of action under Comp. Laws, § 5449, to determine the adverse claim or interest, notwithstanding further allegations as to the nature of defendants’ title, and the defects therein, which are surplusage, and do not change the character of the action.</p> <p>2. Comp. Laws, § 3303, which provides that “every grant of real property, other than one made by the state, or under a judicial sale, is void, if at the time of the delivery thereof such real property is in the actual possession of a person claiming under a title adverse to that of the grantor,” cannot be invoked in support of a demurrer to a complaint to recover land, which alleges that plaintiff has been the owner of the property since a certain date, because the complaint also shows that defendants have been in possession since prior to such date, as the demurrer admits the allegation of ownership, which implies a title lawfully acquired, unless the contrary appears from the pleading.</p>