Pinkham v. Pinkham

• Court: Supreme Court of Nebraska
• Writing for the Court: SULLIVAN
• Citation: 61 Neb. 336,85 N.W. 285
• Parties: PINKHAM v. PINKHAM ET AL.
• Decision Date: 20 February 1901

61 Neb. 336
85 N.W. 285

PINKHAM
v.
PINKHAM ET AL.

Supreme Court of Nebraska.

Feb. 20, 1901.

Syllabus by the Court.

1. A reply alleging that the defendant's counterclaim did not accrue within the period provided by law for asserting such claim, and containing no facts from which the conclusion is deduced, tenders no issue, and such allegation may be entirely disregarded.

2. A defendant, in the actual occupancy of land, may show, under a general denial, that he is the equitable owner, and thus defeat an action brought by the holder of the legal title to establish his ownership and recover possession of the property.

3. The right to commence and prosecute an action may be lost by delay, but the right to defend a suit for the possession of property is never outlawed.

4. Evidence examined, and found to support the decree.

5. A party whose claim to property fails, and whose rights are not affected by an erroneous decree, is not entitled to have such decree set aside or modified.

On rehearing. Affirmed.

For former opinion, see 83 N. W. 837.

[85 N.W. 285]

SULLIVAN, J.

After a thorough consideration of the questions discussed by counsel, we are entirely satisfied that the views expressed in the opinion filed at the last term (Pinkham v. Pinkham, 60 Neb. 600, 83 N. W. 837) are sound, and should be adhered to. The statute of limitations was not properly pleaded, and is therefore not in the case at all. In the reply of each of the appellants it is alleged “(3) that the alleged action for the reformation of said instrument set forth in the amended answer did not accrue to the defendant John H. Pinkham within the statutory period provided by law for proceedings for the reformation of instruments.” This is only the statement of a legal conclusion, unaccompanied by the facts from which the conclusion is deduced. It is, in effect, an assertion that, in the opinion of the pleader, the appellee's counterclaim is barred. It has often been held here and elsewhere that such an allegation tenders no issue, and may be disregarded altogether. Barnes v. McMurtry, 29 Neb. 178, 45 N. W. 285;Scroggin v. Lumber Co., 41 Neb. 195, 59 N. W. 548;Jenks v. Lumber Co., 97 Iowa, 342, 66 N. W. 231;Eno v. Diefendorf, 102 N. Y. 720, 7 N. E. 798;Pope v. Andrews, 90 N. C. 401. In Scroggin v. Lumber Co., supra, which was an action to foreclose a mechanic's lien, the answer stated “that this suit was not brought within the time required by law, nor until after the so-called lien of plaintiff...