against the mortgagee to oust him of possession, when he might immediately turn round, and by an action to foreclose his mortgage, regain possession." (Paes v. Chadderdon, 4 Minn. R. 499, And vide Heyward v. Judd, Ib. 485.)

501, 502.

Under the Minnesota statutes it is held, that, in an action to recover the possession of real property, the plaintiff may unite a cause of action for the value of the use of the premises by defendant, or damages for withholding possession. In such action the plaintiff must allege title or right of possession in himself at the time of the commencement of the action, and a failure so to do may be taken advantage of by demurrer. (Armstrong v. Hinds, 8 Minn. R. 254.)

A complaint in ejectment, under the Minnesota practice, alleges a good cause of action by stating the fee in the plaintiff, and that the defendant unlawfully and unjustly holds possession, alleging entry after the plaintiff acquired the fee. And, under the Code, it is held, that equitable defenses may be interposed to an action of ejectment. But to prevail over the legal title, in the absence of any fraud, mistake or unfair dealing in the person holding the same, the equities on the part of the defendant must be shown to be strong, clear and decisive, and such as would entitle him to a conveyance on a bill filed for that purpose. It was held, further, in the same case, that notice to quit is in general necessary, whenever the tenant enters into possession with the assent of the landlord, no definite period being fixed for the continuance of the possession; but the case of vendor and vendee is an exception to the general rule, though the latter enter into possession under & contract of purchase with the consent of the former. In such case the vendor may maintain ejectment against the vendee without a previous notice to quit. If a demand and refusal were necessary to be shown in order to the plaintiff's right to recover, they should be alleged in the plaintiff's complaint, as they are material facts. (McClane v. White, 5 Minn. R. 178.)

Where a complaint in ejectment alleged that the plaintiffs were the absolute owners in fee of the land claimed, that the defendant was in the actual possession thereof, that the plaintiffs had demanded in writing of the defendant that he surrender possession thereof to them, that he had refused to do so, and that he wrongfully and unlawfully withheld possession,- the court held, that such complaint contained sufficient facts to entitle the plaintiffs to

recover, and should be sustained. (Wells v. Masterson, 6 Minn. R. 566.)

Considerable litigation has been had under the provisions of the Minnesota statute authorizing an action to determine claims to real property. Under this statute the courts hold, that possession of the plaintiff (by himself or tenant), and an adverse claim by the defendant, are the only facts required to constitute a cause of action. The action is declared not to be brought to determine the plaintiff's title, but the defendant's claim. Such seems to be the language and meaning of the statute. The plaintiff must, in such case, in order to recover, prove his possession. The burden is then on the defendant to prove his adverse claim. In such an action the title or right of a third party cannot properly be liti gated, and, if it could, the fact that such third party had a wellfounded claim or title would be no justification of a defendant for making an unfounded or false claim. Possession is prima facie evidence of title, and in all cases may ripen into title, and every false or unfounded adverse claim is a trespass on the rights of the person in possession, which no third party has a right, either morally or legally, to commit. Whether possession is legal is a question that concerns only him in possession and the legal owner or person legally entitled to the possession, and neither the law nor public policy will allow those who have no interest in the question to call on him who is prima facie owner for proof of the validity of his claim. If a defendant's claim is unjust, it should not be supported, whatever may be the rights of the plaintiff as against third parties. (Wilder v. The City of St. Paul, 12 Minn. R. 192. And vide State v. Fish, 2 ib. 153.) The statute clearly intends that any one who has the actual possession of land, and consequently is prima facie the owner of the same, may, upon that fact alone, institute an action against any one who casts a cloud upon his title. The actual possession of the land is the only fact necessary to constitute a cause of action under the statute; and it is unnecessary to plead all the facts upon which the plaintiff's right to possession is founded. (State v. Fish, supra.)

There may be a common-law dedication of land for a public landing or levee. Such dedication does not operate as a grant, but as an estoppel in pais of the owner of the fee from asserting a right of possession inconsistent with the uses and purposes for which the dedication was made. The law applicable to the dedi

cation of highways applies with equal force to the dedication of public landings, and the principle, so far as respects the right of the owner to disturb the use, rests on the same ground in both cases. A party having no title to or interest in lands may, by his deed, estop himself from questioning the validity of his title, or denying that he had authority to convey the fee, or devote any interest or estate to public use at the time of the sale or dedication. Where land is devoted to public use by a common-law dedication thereof, the public, not being entitled to the fee, cannot require a party claiming the fee, without disturbing or questioning the public easement, either to establish or defend his title; but where a claimant threatens to invade the public rights at a time and under circumstances unfavorable to their defense, a city or village, representing the people, may maintain an action to have the rights of the public and the adverse claim determined. (The Village of Mankato v. Willard, 13 Minn. R. 13.)

In respect to the provisions of the statute relating to new trials in actions concerning real property, the courts hold that the statute only cuts off the common law right, that the defeated party in ejectment had to contest the right of possession as often as he saw fit, until arrested by a court of chancery. The statute limits this right to two trials, and declares the second judgment final, which means final so far as to bar another action for the same cause, but, like all other final judgments, it may be reviewed for errors committed on the trial. (Baze v. Arper, 6 Minnesota R. 220.)

It has been held that the plaintiff in the action to recover real property is not entitled to a second trial, under the provisions of the statute respecting new trials in such actions. Berry, J., said: "Whether each party ought or ought not, in reason, to be entitled to a new trial in actions of ejectment, the theory of our law on the subject seems to be that where the question of title has been once fairly litigated according to the course of practice in the courts, the defendant, the party in possession, shall not be harassed by a second trial. When the plaintiff institutes his action he ought to know whether he has any title, and what it is, and our statute does not see fit to allow him to make repeated experiments at the expense, and to the inconvenience, of the defendant, unless he can bring himself within the rules applicable to other civil actions." (Howes v. Gillett, 10 Minn. R. 397, 401.)

In the state of Iowa an action for the recovery of real property is commenced and prosecuted like other civil actions in the state. The venue in the action is local, that is, the action must be brought in the county in which the subject of the action, or some part thereof, is situated; but for good legal reasons the venue may be changed by the court in which the action is brought. (Revised Laws of 1860, ch. 118, §§ 2795, 2803.)

Every action must be prosecuted in the name of the real party in interest, and all persons having an interest in the subject-matter of the action, and in obtaining the relief demanded, may be joined as plaintiffs, so far as real actions are concerned. And when in an action for the recovery of real property, any person having an interest in the property applies to be made a party, the court may order it to be done by the proper amendment. (R. L. ch. 117, §§ 2757, 2759, 2766.)

Any person having a valid subsisting interest in real property, and a right to the immediate possession thereof, may recover the same by action, which may be brought against any person acting as owner, landlord or tenant of the property claimed. The plaintiff's petition in the action need but state generally, without stating the facts constituting the right, that the plaintiff is entitled to the possession of the premises, particularly describing them, also the quantity of his estate, and the extent of his interest therein, and that the defendant unlawfully keeps him out of possession, and the damages, if any, which he claims for withholding the property; but if he claims other damages than rents and profits, he must state the facts constituting the cause thereof. (R. L. ch. 144, §§ 3569, 3570.)

Whenever it appears that the defendant in the action is only a tenant, the landlord may be substituted, notice thereof being given him, as in an original action. And when the defendant is a nonresident, having an agent of record for the property in the state, service may be made upon such agent in the same manner and with the like effect as though made on the principal. (R. L. ch. 144, SS 3571, 3572.)

The answer of the defendant, and of each, if more than one, must set forth what part of the land he claims, and what interest he claims therein, generally, and without the facts constituting the right, and if as a mere tenant, the name and residence of his landlord, and need state nothing more than this. The court may

grant continuances in cases of this nature, for reasons of less importance than those required to be set forth in ordinary civil actions. Where the defendant makes defense, it is not necessary to prove him in possession of the premises. The plaintiff cannot recover for the use and occupation of the premises for more than six years prior to the commencement of the action. And when the plaintiff shows himself entitled to the immediate possession of the premises, judgment will be entered, and a writ of possession issued accordingly. (R. L. ch. 147, §§ 3573–3577.) An action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action. But if the interest of the plaintiff expire before the time in which he could be put in possession, he can obtain a judgment for damages only. (R. L. ch. 144, §§ 3578, 3579.)

Where there is no proof against some of the defendants, the court may order a discontinuance as to them, before the testimony in the case is closed, and where there are two or more plaintiffs or defendants, any one or more plaintiffs may recover against one or more of the defendants, the premises, or any part thereof, or any interest therein, or damages according to the rights of the parties; but the recovery cannot be for a greater interest than that claimed. (R. L. ch. 144, §§ 3580, 3581.)

Judgments in proceedings of this nature are as conclusive as those in actions relating to personal property; but this provision is intended to apply only to interests existing at the time of the trial, and is not intended to prevent a new action to test the validity of rights acquired subsequently to the former trial. (R. L. ch. 144, §§ 3582, 3583.)

The court in its discretion may grant a new trial on the application of a party or those claiming under him, made at any time within two years after the determination of the former trial. If the application for a new trial is made after the close of the term at which the judgment was rendered, the party obtaining a new trial must give the opposite party ten days' notice thereof before the term at which the action stands for trial. The result of such new trial, if granted after the close of the term at which the first trial took place, will in no case affect the interest of third persons acquired in good faith for a valuable consideration since the former trial. But the party who, on such new trial, shows him