Campbell v. Jones
| Decision Date | 02 July 1878 |
| Citation | 25 Minn. 155 |
| Parties | Collin Campbell v. Richard H. Jones and others |
| Court | Minnesota Supreme Court |
Appeal by defendants from an order of the district court for Mille Lacs county, McKelvy, J., presiding, sustaining a demurrer to a counterclaim pleaded in the answer.
Order reversed.
N. T Hauser, for appellants.
C. D Kerr, for respondent.
Action under the statute to determine adverse claims to real estate. The complaint alleges that plaintiff is the owner, that the land is vacant and unoccupied, and that defendants claim some estate or interest therein adverse to the plaintiff, and asks judgment declaring such claim unlawful and void. After various denials, the answer sets up a judgment recovered and docketed in favor of defendants, by their firm name, against Murdock and Margaret Campbell, and another, upon an indebtedness accrued prior to the conveyance to plaintiff; the issuance of an execution upon it; the levy of the execution upon the land in question as the property of Murdock and Margaret; the sale under the execution; the purchase of the land by these defendants; the issuance to them, in their firm name, of a certificate of sale; that on a day prior to the entry of said judgment, Murdock and Margaret were owners of the land; that on said day, Murdock and Margaret, with intent to hinder, delay and defraud these defendants of their said debt, "and without any actual, valuable or adequate consideration, made a deed purporting to convey said real estate to their son, the plaintiff in this action, who was then a minor in the service of his said father, and residing with his said parents as a member of their family; that said deed was not delivered to the plaintiff in this action, but put upon record, if at all, by his said father or by his direction; that his grantors did not deliver or give possession of said land to their said grantee; that said grantors have, ever since the date of their said deed, continued in possession of and to use and occupy said land, notwithstanding their said deed, and had not, before the commencement of this action, delivered said deed, nor possession of said land, to their said grantee and son;" that the certificate of sale to these defendants was made in their firm, instead of their individual names, without their knowledge or consent, and they did not know of it until the commencement of this action. The answer demands judgment that no person other than the parties to this action have any interest in said real estate; that the conveyance to plaintiff be declared void as to defendants, and set aside, with the record thereof, and that plaintiff has no interest in the land; that it be adjudged to be their property, in their individual names, free from all claim of plaintiff; and for the correction of the certificate of sale and record thereof, and that defendants have possession of the land. To this part of the answer a demurrer was interposed, on the ground that two causes of action are improperly united in it; that there is a defect of parties to the counterclaim alleged, because Murdock and Margaret Campbell are necessary parties to the adjudication thereof, and for the relief demanded by the answer; and that the facts stated do not constitute a counterclaim against the plaintiff. The demurrer was sustained.
The statute (Gen. St. c. 66, § 83,) allows only one cause of demurrer to an answer -- to wit, that it does not contain a counterclaim or defence. The ground that, in a counterclaim, two causes of action are improperly united, is untenable as ground for demurrer. If each is a proper...
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