Page 438

• Format: Text
• Language: unknown
• Published: North Dakota State Library
• Subjects: Politics & Government; Greenland
• Online Access: http://cdm16921.contentdm.oclc.org/cdm/ref/collection/p16921coll3/id/16034

BL.-\KEMORE AND KEDNEY v. ROBERTS 395 Statutory Complaint Stating Additional Facts, Not Demurrable. 4. The fact that a complaint, under said chapter 5, states facts additional to those necessary, does not render the complaint demurra ble, if it appears that all the matters required thereby are stated, and. that no other or different cause of action is stated. Complaint Suficient. 5. A complaint to determine adverse claims under chapter 5, p. 9, Laws 1901, considered, and held not demurrable. Appeal from District Court, Cass county; Pollock, J. Action by Robert B. Blakemore and others against Matilda M. Roberts. Judgment for plaintiffs, and defendant appeals. Affirmed. J. E. Robinson, for appellant. Merely averring that the plaintiffs were the owners and holders of tax certificates does not state a cause of action. Swenson v. Greenland, 4 N. D. 532, 62 N. W. Rep. 603; Ball v. Dangerfield, 26 Minn. 307, 3 N. W. Rep. 698; 2 Blackwell on Tax Titles (5th Ed.) sections 1089-1091. - The owner and holder of a mere tax certificate has no right to bring an action to quiet his title or claim to land. Boardman v. Boozewinkel, 121 Mich. 320, 80 N. W. Rep. 37. The plaintiffs have no legal capacity to sue. Their appointment as executors does not transfer to them title to the real property of their testator. It descends to his heirs or devisees, not to his ~ executors. The heir only can maintain an action based on the tax certificate. Rice v. White, 8 Ohio 216 Revised Codes, section 6466 Flood, Admr. v. Pilgrim, 32 Wis. 376. Newman, Spalding <‘5' Stambaugh, for respondents. Decedent had the right to rents and profits of the land in suit at the time of his death. The tax certificate vested in him the entire beneficial interest in such lands including such rents and profits, and the ‘possession, and he was the equitable owner of the property pro vided his certificates were valid. This title descended to his heirs subject to the right of possession of his executors, who coulrl maintain an action for possession in the same courts that were open to their testator. Rev. Codes, section 6461. The only question. is the sufficiency of the complaint.