Turner v. Johnson

• Decision Date: 31 May 1906
• Citation: 93 S.W. 1038
• Parties: TURNER v. JOHNSON et al.
• Court: Kentucky Court of Appeals

93 S.W. 1038

TURNER v. JOHNSON et al.

Court of Appeals of Kentucky.

May 31, 1906

Appeal from Circuit Court, Floyd County.

"Not to be officially reported."

Action by W. H. C. Johnson and others against Morgan Turner. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

May &amp May and Greene & Van Winkle, for appellant.

James Coble, for appellees.

PAYNTER J.

Harvey Johnson bought from one Little a tract of land and paid him for it. The vender made a deed to appellee W. H. C. Johnson for it. The latter instituted this action against the appellant, in which it is alleged that he is the owner of the land and entitled to the possession of it; that the appellant was wrongfully in possession of it and was committing trespasses upon it; he also averred that the appellant was setting up a claim to the land, and thus casting a cloud upon the title; and that he was entitled to be quieted in the possession of the land. In the prayer of his petition he asked that he recover the land, and that he be quieted in the possession of it. The appellant filed an answer, in which he claimed that he had given Harvey Johnson $350 of the $600 the purchase price, and that the land was bought for him, and that the deed was wrongfully made to the appellee, and that he was entitled to have the land conveyed to him and expressed a willingness to pay the balance of the purchase money. The appellee obtained an order of injunction preventing the appellant from committing trespasses upon the land. The court adjudged that the appellee was the owner of the land and entitled to the possession of it.

It is urged that the demurrer should have been sustained to the petition, upon the theory that it was an action to quiet title. It is insisted that the petition is not good as an action to quiet title, because it does not contain an averment that the defendant was in possession of the land. It is true that the general rule is, to maintain an action to quiet title to land, it is necessary for the plaintiff to aver that he is the owner and in possession of the land. It is our opinion that it was an action of ejectment, and that although the prayer of the petition to recover the land is followed by the additional prayer that he be quieted in the possession of it, it did not change the character of the action. The prayer to have the title quieted was surplusage. If the possession of the land was adjudged to the plaintiff,...