Page 540

• Format: Text
• Language: unknown
• Published: North Dakota State Library
• Subjects: Politics & Government; Greenland; Sion; Sutherland; Weaver
• Online Access: http://cdm16921.contentdm.oclc.org/cdm/ref/collection/p16921coll3/id/34701

SEXTON v. SUTHERLAND 613 required facts are stated and no other or different cause of action is stated. We find no warrant for holding that the plaintiffs have waived the statutory form of complaint or elected to plead another. The de fendant relies on the case of Swenson v. Greenland, 4 N. D. 532, 62 X. W. 603. That case is not applicable to this one. This complaint is authorized and its form prescribed by statute. It is therefore excepted from the principles applied in that case to an action for the foreclosure of a tax lien. The case of Walton v. Perkins, 28 Minn. 413, 10 N. W. 424, is also claimed to be in point. But we do not so understand it. In that case the complaint was defective as a complaint in an equitable action to cancel a mortgage which was a cloud upon a title to land. The court refused to sustain the complaint as sufficient under the statute which provided for settlement of adverse claims." It will be noted that Mr. Justice Robinson also cites and relies on the case of Walton v. Perkins, supra. The holding in that case is stated in the syllabus therein as follows: "A complaint which is clearly one to remove a specified cloud upon title to real estate cannot, if it fail to show that the instrument under which defendant claims is invalid, be sustained against a demurrer, on the ground that the fact stated show that plaintiff might have brought an action under Gen. Stat. 1878, chap. 75, §§ 2, 3, to determine adverse claims upon real estate." In the subsequent case of Buffalo Land & Exploration Co. v. Strong, 91 Minn. 84, 97 N". W. 575, the Minnesota supreme court had occa sion to consider a complaint in an action to determine adverse claims, wherein plaintiff's title was alleged in detail and the alleged interests of the defendants were also set out with considerable particularity. In answering the contention that this rendered the complaint demurrable, the court said : "It was unnecessary to allege in detail plaintiff's chain of title, or to refer to the issuance of the patent to defendant Strong and the fact that this was done, and also that the complaint alleged that the patent was issued through mistake and fraud, did not alter the nature of the action, nor add anything to the force of the pleading. These al legations could be rejected as surplusage, and a cause of action still be found in the complaint." The same question was also considered and the same result reached by the supreme court of South Dakota in the cases of Frum v. Weaver, 13 S. D. 457, 82 N. W. 579 Campbell v. 37 X. D.—33.