Povah v. Lee

Citations

• 29 Wash. 108
• 69 P. 639
• 1902 Wash. LEXIS 562

Syllabus

<p>QUIETING TITLE-ACTION BY ONE OUT OE POSSESSION-IMPROPER REMEDY.</p> <p>An action to quiet' title and remove a cloud from real property cannot be maintained by one who is not in possession, but in such case, under Bal. Code, § 5500, which provides that “any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same hy action in the superior court of the proper county, to he brought against the tenant in possession; . . . and may have judgment in such action quieting or removing a cloud from plaintiff’s title,” and under Id., § 5508, which provides that “the plaintiff in such action shall set forth in his complaint the nature of his estate, claim, or title to the property, and the defendant may set up a legal or equitable defense to plaintiff’s claims; and the superioi title, whether legal or equitable, shall prevail,” the proper remedy is by the statutory action in the nature of ejectment with the added incident of determining the paramount title.</p> <p>SAME ■ — • WAIVER.</p> <p>The fact that defendants in a suit to quiet title by one out of possession plead their own title, as required by Bal. Code,' § 5509, would not constitute a waiver of their right to object that plaintiff had mistaken her remedy, when they do not ask for any affirmative relief in their answer.</p>