Black v. Drake

[483] The opinion of the court was delivered by Horton, C. J.: The petition filed in this case alleges that .the defendants in error (plaintiffs below) are the surviving heirs of John and Mary Pigeon, who died intestate; that the lands described in the petition were patented to John and Mary Pigeon, under a treaty of the United States and the Miami tribe of Indians, bearing date June 5,18'54; that during their lives John and Mary Pigeon never conveyed said lands, and since their decease, their heirs and legal representatives have not conveyed them; that they have a legal estate in and are entitled to the immediate possession of the said real estate, and that the plaintiffs in error (defendants below) unlawfully keep them out of the possession of the real estate, and have unlawfully kept them out of the possession thereof since July 23, 1869; that during all of said time plaintiffs in error (defendants below) have received to their own use all the issues and profits thereof, to the damage of plaintiffs below in the sum of $2,960. The prayer of the petition is, that plaintiffs below recover the possession of the premises described in the petition, and also the sum of $2,960, their damages. This petition was not attacked in the court below in any manner except by demurrer. The demurrer alleged, first, that in said petition several causes/ of action were improperly joined; second, that in the cause of action in said petition set forth and numbered one, several causes of action were improperly joined; third, that in the cause of action in said petition set forth and numbered two, several causes of action were improperly joined. . This demurrer was overruled by the court below, and this is the ruling now complained of by the plaintiffs in error. Sec. 83~of the code provides: “The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore'been denominated légal or equitable, or both, where they all arise out of either one of the following clásses: . . . Sixth Claims to recover real property, with or without damages [484] for the withholding thereof, and the rents and. profits of the same.” Under this section, there can be no question but that a cause of action in the nature of ejectment, and one for rents and profits, may be united in the same action; therefore, the court did not err in overruling the demurrer. (Scarborough v. Smith, 18 Kas. 399.) The order and judgment of the district court, will be affirmed, and the case remanded. All the Justices concurring.