Sidor som bilder

self entitled to lands which have thus passed to a bona fide purchaser, may recover the proper amount of damages against the other party either in the same or a subsequent action. The party who has been successful in such new trial may (if the case require it) have his writ of restitution to restore him his property. (R. L. ch. 144, SS 3584-3588.)

In an action against a tenant the judgment will be conclusive against the landlord who has received notice as before provided. If not notified, he will be regarded as a defendant who has not been served with the original notice, and must be treated accordingly. (R. L. ch. 144, SS 3589, 3590.)

The plaintiff in an action to recover real property must recover on the strength of his own title. (R. L. ch. 144, $3591.)

The court, on motion, and after notice to the opposite party, may, for canse shown, grant an order allowing the party applying therefor to enter upon the land in controversy, and make survey and admeasurement thereof for the purposes of the action. The order must describe the property, and a copy thereof must be served upon the owner or person having the occupancy and control of the land. (R. L. ch. 144, SS 3592, 3593.)

The verdict may specify the extent and quantity of the plaintiff's estate, and the premises to which he is entitled, with reasonable certainty, by metes and bounds, and other sufficient description, according to the facts proved. A general verdict in favor of the plaintiff, without such specifications, entitles the plaintiff to the quantity of interest or estate in the premises as set forth and described in the petition. Where a plaintiff in an action of this nature is entitled to damages for withholding or using, or injuring his property, the defendant may set off the value of any permanent improvements made thereon to the extent of the damages, unless he prefers to avail himself of the law for the benefit of occupying claimants. And in case of wanton aggression on the part of the defendant the jury may award exemplary damages. A tenant in possession in good faith, under a lease or license from another, is not liable beyond the rent in arrear at the time of suit brought for the recovery of the land and that which may afterward accrue during the continuance of his possession. And under certain circumstances the defendant may have any crop planted or sowed on the premises retained to him by giving a bond as provided by the statute. (R. L. ch. 144, SS 3594-3600.)

An action of the same nature may be brought by one having a reversionary interest, or by one in or out of possession, against another who claims title to real property, although the defendant may not be in the possession thereof, for the purpose of determining and quieting the question of title. And if the plaintiff is in possession he may file a petition setting forth his estate, whether of inheritance for life or years, and describing the premises, and averring that he is credibly informed and believes that the defendant makes some claim adverse to the estate of the petitioner, and praying that he may be notified to show cause why he should not bring an action to try the alleged title, if any, and thereupon the court must order notice to be given to the defendant; and upon the return of such order of notice, duly executed, if the defendant so notified shall make default, or having appeared shall disobey the lawful order of the court to bring an action and try the title, the court will enter a judgment that he be forever debarred and estopped from having or claiming any right or title adverse to the petitioner, and those claiming by or through him, to the premises , described. If the defendant shall appear and disclaim all right and title to the petition he will recover costs; if he shall claim title he must, by answer, show cause why he should not be required to bring an action and try such title, and the court must make such judgment or order respecting the bringing and prosecuting of such action as may seem just. In other particulars the rules prescribed respecting actions to recover real property will apply in these cases. (R. L. ch. 144, SS 3601-3604.)

In an action for the recovery of dower before admeasurement, or by a tenant in common, or joint-tenant of real property again his co-tenant, the plaintiff must show, in addition to his evidence of right, that the defendant either denied the plaintiff's right, or did some act amounting to such denial, precisely as is the law in Minnesota. (R. L. ch, 144, S 3605.)

The action to recover real property is frequently called in Iowa an action of right, and in this action it is held that the plaintiff must recover upon the strength of his own, and not on the weakness of his adversary's title. He must show the legal title to be in himself. And in all such cases the legal title will prerail against an equitable one. (Huntington v. Jewett, 25 Iowa R. 249. Page v. Cole, 6 ib. 153. Harman v. Steinman, 9 ib. 112. Farley v. Goocher, 11 ib. 570. Abbott v. Chase, 13 ib. 453. Allyn v.

Johnson, Ib. 604. Armstrong v. Pierson, 4 Green's R. 45.) But it is held that the statute provides a remedy to recover the possession of land, and also a remedy to determine the title. The statute therefore supersedes the action of ejectment, and enlarges the common-law writ of right. To enable a plaintiff to recover in such action, it must appear that the defendant acted as owner, landlord or tenant of the property claimed ; and, if as tenant, that he was in possession. Where the defendant pleads to an action of right, in the form provided by the statute, he virtually admits himself in possession; and, as possession is not denied by such a plea, it need not be proved. (Kerr v. Lighton, 2 Green's R. 196.)

As the law now stands in the state of Iowa, it is well settled that a defendant in an action of right (or for the recovery of real estate) may set up an equitable defense, that is, any matter which would authorize a court of equity to grant entry against a legal liability, but which at law could not have been pleaded in bar. He may even have positive or affirmative relief for matter purely equitable, by way of counter-claim or cross-demand. But with reference to the manner such defenses, when made, are to be treated and disposed of, it has been suggested that in all such cases the equitable defense will be preliminary to the plaintiff's cause of action, and addressed to the court; not involving ordinarily any change of forum in order to settle the ultimate rights of the parties. Undoubtedly a change of forum would be authorized where the facts disclosed in the plaintiff's petition are greatly involved, and, in the nature of the redress sought, would properly invoke the equity rather than the law jurisdiction of the court. In such case, if commenced as an ordinary action, a transfer to the equity docket would be ordered ; and so, where the case has been commenced as an equitable suit, and the facts show that it should have been docketed as a law action, the transfer will be ordered. (Vide Rosierz v. Van Dam, 16 Iowa R. 175. Sypher v. McHenry, 12 ib. 585. Van Olman v. Spafford, 16 ib. 186. Kramer v. Curfee, Ib. 434.)

It is held to be a good equitable defense in an action of right, that the defendant foreclosed and took possession of the premises under and by virtue of a contract, which he had been at all times ready to perform, with the grantor of the plaintiff, of which the plaintiff had notice at time of his purchase. (Warren v. Crew, 22 Iowa R. 315.) And the unsuccessful party in an action of right is entitled to the benefit of the provisions of the statute relating to new trials in such cases, as well where the defense is equitable in its nature as where it is legal. (Butterfield v. Walsh, 25 Iowa R. 263.)

Where the defendant in an action for the recovery of real property relies upon the statute of limitations, and also sets up a claim for improvements made by him during his possession, he may, even after the evidence in support thereof has been introduced, withdraw such claim, and proceed with his other defenses. (Booth V. Small, 25 Iowa R. 177.)

It is held in Iowa that a right of dower, where the dower is unassigned, cannot be set up as a defense in an action of right against the person holding the fee of the land. The widor's right is regarded as but a right in action. She is not an heir, neither is she a tenant in common with the heirs. She has no estate until dower is assigned. Her right is to hold possession of the premises in which she may be entitled to dower for the given time of her quarantine, and, if dower is not set out, then sue for it. In this respect the rule is held to be the same in Iowa as it is at common law. (Cavender v. Smith, 8 Iowa R. 360.)

In an action of right, where the plaintiff proves himself entitled to only two-thirds of a lot, the verdict shonld correspond with the evidence, and not be general for the plaintiff. A person owring an undivided interest in land may recover to the extent of his interest in the action of right. (Hughes v. Holliday, 3 Green's R. 30.)

In an action of right in Iowa, it is held that the plaintiff, where he holds the legal title and right of possession to real estate, may recover for the use and occupation of the land, as well as the title and possession; that is to say, the mesne profits may be secured in the same suit which determines the title. And, under the section of the statute in relation to occupying claimants, a defendant in an action of right can at any time, while in possession of the premises in controversy, file his petition to have the value of improvements made by him ascertained, and to obtain payment of the same before surrendering possession. (Dunn v. Starkweather, , 6 Iowa R. 466.)

It is held that, in an action of right commenced against the ancestor, and to which the heirs are made parties after his death, the heirs are not liable for damages for the rents and profits while

[ocr errors]

the ancestor was in possession of the premises. The heirs are only liable for such time as they are shown to have been in possession. In such a case, if the plaintiff seeks to recover damages from the ancestor, his administrator should be made a party with the heirs, or a separate action should be instituted against him. (Cavender v. Smith, 8 Iowa R. 360.)

It will be observed that the statute of Iowa in respect to the action to recover real property is, in many of its provisions, but a re-enactment of the common law, or of principles so long settled by the decisions of the courts as to become elementary. Indeed, it is admitted by the commissioners who reported the civil code, that in some instances the current practice is in accordance with what they propose to be enacted by statute, and the statute seems to have been passed in order to make clear what may have been before in some doubt. (Report on Civil Code, 334.)

The cases in which the action for the recovery of real property may be maintained in the state of Iowa are stated in a previous chapter. (Ante, ch. 3.)




In the state of Missouri, the action for the recovery of real property is called the action of ejectment; and the statute provides that two or more tenants in common may join in the action, and jointly prosecute and sustain such action for the recovery of the estate by them owned in common. The action of ejectment must be prosecuted in the real names of the parties thereto, and must be brought against the person in possession of the premises claimed. And the person from or through whom the defendant claims title to the premises may, on motion, be made a co-defendant. (Gen. Stat. 1865, ch. 151, SS 3, 4, 5.)

It is made sufficient by statute for the plaintiff to aver in the petition that (on some day therein to be specified) he was entitled to the possessson of the premises (describing them), and, being so entitled to the possession thereof, that the defendant afterward

« FöregåendeFortsätt »