Moorehead v. Robinson

Citations

• 68 Kan. 534
• 75 P. 503
• 1904 Kan. LEXIS 140

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Tenants in Gommon — Petition Must Demand Possession. A joint tenant or tenant in common out of possession cannot maintain a suit for partition against his cotenants who hold adversely to him, without joining with the demand for partition a cause of action for possession of the land. {Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074, 93 Am. St. Rep, 272, cited and reaffirmed.)</p> <p>2. Practice, District Court — Objections Waived — New Trial. In an action for partition of premises, where the petition avers that the parties are tenants in common, and it is not expressly averred that plaintiffs are in possession) and there is not joined with the demand for partition an action for the possession of premises; and where the defendant answered, claiming title and possession, asking that title be quieted as against the claims of plaintiffs; and the sufficiency of plaintiff’s petition was not chai-lenged in any manner by defendant in the trial court: Held,ih&t defendant thereby waived all objections to the sufficiency of said petition. Held, also, that defendant was not entitled to a new trial, as a matter of right, under section 5086, General Statutes of 1901.</p>