Board of Ed. of City of Herington v. Thompson

• Decision Date: 12 December 1959
• Docket Number: No. 41479,41479
• Citation: 347 P.2d 369,185 Kan. 620
• Parties: BOARD OF EDUCATION OF CITY OF HERINGTON of the State of Kansas, Appellee, v. Bert L. THOMPSON, Jr., Frances K. Thompson, Helen Thompson Sanderson et al., Appellants.
• Court: Kansas Supreme Court

Page 369

347 P.2d 369

185 Kan. 620

BOARD OF EDUCATION OF CITY OF HERINGTON of the State of Kansas, Appellee, v. Bert L. THOMPSON, Jr., Frances K. Thompson, Helen Thompson Sanderson et al., Appellants.

No. 41479.

Supreme Court of Kansas.

Dec. 12, 1959.

Syllabus by the Court.

1. It is an ancient rule that a demurrer brings before the court only the facts alleged in the pleading to which the demurrer is directed, and the court may not consider any fact not found in the pleading.

2. The mere fact that a petition seeks to recover more or different relief than that to which plaintiff may be entitled does not make the petition demurrable if it otherwise states a cause of action.

Charles W. Bradshaw, Abilene, argued the cause and Horace A. Santry, Salina, was with him on the briefs for appellants.

Howard W. Harper, Jnction City, argued the cause, and Lee Hornbaker, William D. Clement and Richard F. Waters, Junction City, were with him on the briefs for appellee.

JACKSON, Justice.

The Board of Education filed suit in the district court to quiest title to real estate against the appellants as defendants. After filing a motion to strke and a motion to make the petition more definite and the overruling of said motions by the trial court, defendants filed a demurrer to plaintiff's petition upon the grounds: 1. That several causes of action were improperly joined in said petition. 2. That the petition did not state facts sufficient to constitute a cause of action.

The trial court overruled the demurrer and gave defendants time to answer. Instead, defendants appealed the order of the court overruling the demurrer to this court. It may be said that defendants do not argue in their brief the above motions or that there is any merit in the first ground specified in the above demurrer. The sole question now before the court is whether the petition stated a cause of action.

The Board of Education in its petition alleged that it was the owner of the described real estate in Dickinson county in fee simple and was in possession thereof; that it had been in open and adverse possession of the real estate for more than fifteen years under and by virtue of a deed dated December 11, 1905, from Bert L. Thompson and Edith M. Thompson, then husband and wife.

A copy of the deed was attached to the petition as an exhibit, and it is shown that the granting clause thereof reads in part as follows:

'All of Block Number Ten (10) in Thompson's Addition to the City of Herington, to be occupied and used by said party of the second part its successors and assigns, for public schools as provided by the laws of the State of Kansas now in force or hereafter to be enacted, and for no other purpose.'

The petition of the Board of Education contains the following concluding paragraph preceding the prayer:

'The above named defendants, and each of them, claim some title, estate or interest in or lien upon the real estate above described, adverse to the plaintiff, the exact nature of which claim is unknown to the plaintiff, but none of the said defendants have any title, estate or interest in the said real estate, or lien thereon, and said claims are void and wholly inferior and junior to the title and right of possession of the plaintiff to said real estate and constitute a cloud upon plaintiff's title.'

Among the opening paragraphs of the brief of the appellants in this court, we find the following:

'The attention of the court is especially invited to the fact that the only parties to this suit are the grantee and the heirs of the grantor of the deed to be construed, and that the grantee seeks to quiet title for all purposes against its grantor.'

The very evident trouble with the above statement at the very outset is that these facts do not appear on the fact of the petition. While these demurring defendants are named in the petition, neither their identity nor any right or claim of title belonging to them is disclosed in the petition. Instead, the petition in effect asks that defendants answer and set up any claim of title which they may have to the real estate in question.

One of the oldest and best settled rules of pleading is that a demurrer will reach only facts which appear in the pleading demurred to. If certain facts are necessary for the court to consider in passing upon a question of law and are not contained in the petition, a defendant must answer and allege the pertinent and necessary facts. This rule was better understood perhaps, or at least was fraught with more danger to the party demurring before the enactment of the...