Fry v. Summers

• Decision Date: 06 April 1895
• Citation: 4 Idaho 424,39 P. 1118
• Parties: FRY v. SUMMERS
• Court: Idaho Supreme Court

39 P. 1118

4 Idaho 424

FRY v. SUMMERS

Supreme Court of Idaho

April 6, 1895

COMPLAINT-DEMURRER.-Under section 4538 of the Revised Statutes of 1887, an action to quiet title may be brought by any person against another who claims an estate or interest in real estate adverse to him for the purpose of determining such adverse claim. Held, the complaint states a cause of action under said section.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Judgment reversed, with instructions. Costs of appeal in favor of appellant..

Charles L. Heitman and Albert Hagan, for Appellant.

An action to quiet title, under our code, is simply to determine any or all adverse claims thereto. (Idaho Rev. Stats., sec 4538.) All that is necessary to allege in a complaint to quiet title and determine conflicting claims to real estate is to allege possession and ownership or possession or ownership in the plaintiff and that the defendant claims some title adverse to that of plaintiff. (2 Estee's Pleadings sec. 2523; Castro v. Barry, 79 Cal. 446, 21 P. 946; Curtis v. Sutter, 15 Cal. 262, 263; Stork v Stors, 6 Wall. 409.) Nor is such an action confined to the owner of a legal title but embraces every description of claim. (Head v. Fordyce, 17 Cal. 151; Horn v. Jones, 28 Cal. 204; Joyce v. McAvoy, 31 Cal. 287, 89 Am. Dec. 172, and note.) When the land office received the filing of the plaintiff, the land was then segregated from the public lands by the land department. (Wilcox v. Jackson, 13 Pet. 576; Witherspoon v. Duncan, 4 Wall, 218; Deffenbach v. Hawke, 115 U.S. 392, 6 S.Ct. 95; United States v. Minor, 114 U.S. 233, 5 S.Ct. 836; Moore v. Robins, 96 U.S. 530; Orr v. Stewart, 67 Cal. 275, 7 P. 693; Pralas v. Pacific etc. Co., 35 Cal. 30; Supelveda v. Supelveda, 39 Cal. 13; Chateau v. Pope, 12 Wheat. 587; Lyttle v. Arkansas, 9 How. 333; Hutton v. Frisbie, 37 Cal. 475.)

S.E. Henry and Keat & Fogg, for Respondent.

No brief filed.

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This is an action to quiet title brought by Richard Fry, as guardian ad litem of Clarence M. Fry, an infant. A general demurrer was interposed to the complaint and sustained by the court, and judgment of dismissal entered, from which judgment this appeal was taken.

The question for determination is, Does the complaint state a cause of action? The complaint alleges that Clarence M. Fry is an infant, and that Richard Fry is the duly appointed qualified, and acting guardian of said infant, for the purposes of this action; that said infant is an Indian, unmarried, not residing upon any Indian reservation, and for whose tribe no reservation has been provided by treaty, act of Congress, or executive order, with other averments, bringing said infant within the provisions of section 4 of an act of the Congress of the United States known as the "General Allotment Act," approved February 8, 1887 (see 24 Stats. 388), and amendments thereto approved February 28, 1891 (see Stats. 794); that, by virtue of said act of Congress and amendments thereto, said infant, through his mother, Justine Fry, on March 25, 1891, located the land in controversy, it being unsurveyed and unappropriated government land; that after locating said land he, through his said mother, took possession of said land, and improved it; that on July 20, 1891, his mother, in his behalf, filed in the land office at Coeur d'Alene, Idaho an Indian allotment application for said land; that said lands are agricultural and grazing, and not mineral, lands; that appellant claims title and right to possession by reason of his compliance with the provisions of said acts of Congress; that respondent claims an interest in said land adverse to appellant; that respondent's claim is without right; that in July, 1892, respondent took possession of said land, ejected ...