Conrad v. Adler
| Decision Date | 26 March 1904 |
| Citation | 100 N.W. 722,13 N.D. 199 |
| Parties | CONRAD et al. v. ADLER et al. |
| Court | North Dakota Supreme Court |
1. Under the facts narrated in the opinion, from which it appears that the complaint was amended three times during the progress of the trial, it is held that the trial court did not err in refusing the plaintiffs' further request for leave to amend after trial.
2. In actions of ejectment, or actions to determine adverse claims under section 5904, Rev. Codes 1899, the plaintiff must recover, if at all, upon the strength of his own title, and not because of the weakness of the defendant's.
3. In this case, the plaintiffs having failed to show any title or interest in the premises in controversy in themselves, judgment dismissing the action was proper.
Appeal from District Court, Nelson County; C. J. Fisk, Judge.
Action by W. S. Conrad and Libbie Roll against Mina Adler and Charles Adler. Judgment for defendants, and plaintiffs appeal. Affirmed.G. A. Bangs (R. A. Eaton, of counsel), for appellants. Guy C. H. Corliss, for respondents.
This action was brought to recover possession of lots 7, 8, 9, and 10, in block 19, village of Lakota, Nelson county, N. D., and damages for the withholding thereof. The complaint alleges that under a pretended tax deed the defendants took possession of the premises, and have ever since wrongfully withheld and detained the same. During such unlawful possession by defendants, the plaintiff Roll sold and conveyed by quitclaim deed her interest in said premises to plaintiff Conrad, and this suit is maintained by both said plaintiffs for the use and benefit of the plaintiff Conrad. The defendants pleaded title and possession in Mina Adler. During the progress of this cause the complaint was amended three times, but the issue as above stated was substantially the original issue, and upon which the action was submitted and determined. After judgment, application was made for leave to amend the complaint, and to allege that the defendants, Mina Adler and Charles Adler, were and are husband and wife; that they came into possession of the premises by lease from plaintiff Roll to the defendant Charles Adler, and while in possession under such tenancy a tax deed was taken in the name of Mina Adler. It was urged that this application was made on the foundation of certain evidence introduced, and to conform the pleadings thereto. The case had been tried upon the theory that the defendants were in adverse possession under color of a tax deed, and the application, coming after several attempts at amendment before trial, and after trial and judgment, and stating a new and distinct cause of action separate and different from that first stated, and upon which the cause was tried, it was properly denied by the trial court. The cause was tried in the district court without a jury, and the seventh finding of fact recites: “That the evidence fails to show that either of the plaintiffs is the owner of or has any interest in the premises described in the complaint herein, or any part thereof.” The eighth finding recites: “That the defendant Mina Adler is in possession of said premises under a claim of title under tax deeds issued to her on July 23, 1894, and that said defendant took possession of said property under the said deeds as alleged in the complaint herein, but the validity of such tax deeds is not adjudicated in this case.”
It is admitted in the complaint and shown in the evidence that the defendant Mina Adler took possession of the premises and holds the same under tax deeds. The validity of such tax deeds was not determined in the district court, to which no complaint is made by the defendants. Some evidence was introduced by way of attack upon the validity of the tax proceedings, but the district court held that plaintiffs should first establish a title in Libbie Roll before she could recover in this action. Whether this is an action in ejectment, or to determine adverse claims as provided in section 5904, Rev. Codes N. D. of 1899, as amended by chapter 5, p. 9, Laws 1901, the plaintiff must rely upon her own title, estate, lien, or incumbrance. The plaintiff must have some title, either legal or equitable, under...
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