Clay v. Scheeline Banking & Trust Co.

By the Court, Coleman, J.: This is an appeal from a judgment in favor of respondents, who were defendants in the district court, by Edwin Clay and Emma V. Clay, his wife, who were plaintiffs in the district court. In their complaint it is alleged that the plaintiff Emma V. Clay was the owner of certain improved real estate; that the plaintiffs had been, and at the time of filing the suit were, residing upon the property; that the plaintiffs filed and had recorded in the proper office their homestead selection, designating the property in question as a homestead. It is also alleged in the complaint as follows: "That, notwithstanding the fact hereinabove alleged that the ownership of said real property by said Emma Clay as aforesaid, and the declaration thereon by herself and said Edwin Clay of the homestead marked Exhibit A, hereby specially referred to and made, a part hereof, the said defendants, Scheeline Banking and Trust Company, a corporation, and C. P. Ferrel, sheriff of Washoe County, State of Nevada, are endeavoring to cloud and cast a cloud upon said real property, in that they and each of them are causing to be sold said real property pursuant to a certain judgment dated the 16th day of March, 1915, wherein said defendant Scheeline Banking and Trust Company recovered a judgment against said plaintiffs, in that certain action entitled Scheeline Banking and Trust Company, a corporation, plaintiffs, against Edwin Clay and Emma Clay, for the sum of $2,004.83, and the interest thereon, pursuant to- the terms of said — 14 — judgment, and notwithstanding the further fact that said defendants have no right, title, interest, claim, or demand in or to said real property or any part thereof, and the said plaintiffs are the owners thereof, seized in fee simple' absolute, in the possession, and entitled to the immediate possession of said real property. ” The prayer of the complaint is as follows: " Wherefore plaintiffs pray that the title and ownership to said real property be forever quieted against said defendants and each of them, and that said plaintiffs be declared to be the owners of said real property and the whole thereof, and that said plaintiffs have judgment herein pursuant to law accordingly, and for costs of suit. ” Omitting the introductory statements, the answer of the defendants reads: " Denies' that the plaintiffs were residing at the time of the alleged claim of homestead or at any other time on the described premises; denies that the plaintiff claimed the property and its appurtenances set forth in plaintiffs’ complaint as a homestead, or that the plaintiffs, or either of them were entitled to claim said premises and appurtenances as a homestead, by reason of the declaration of homestead or otherwise, or at all; denies that at the time of the alleged declaration of homestead, or at any other time, the plaintiffs or either of them were actually or at all residing or living upon said described premises, or that they claimed, or intended to claim, or that they were entitled to claim, said premises and its appurtenances or any part thereof as a homestead, or that said premises was or could be claimed as a homesteád; denies that said premises was ever used by the plaintiff as a homestead.” The case was tried before the court without a jury, and the court in its findings of fact found that: " At the time the declaration of homestead was made and filed the plaintiffs were not residing thereon, and had not the intention to use, and did not actually use and occupy, the premises described in said declaration as a homestead as required by section 2142 of the Revised Laws of Nevada 1912.” — 15 — Judgment was entered dismissing the action, and for costs in favor of respondents. The application to this court to reverse the judgment of the trial court and to order that court to enter judgment on the pleadings in favor of appellants is based upon the idea as set forth in the following language quoted from the brief of counsel for appellants: "It is admitted in the pleadings, since it is not denied in the answer, that respondents have no right, title, interest, claim, or demand in or to the real property described in the complaint, and that appellants are the owners thereof, seized in fee simple absolute, in the possession and entitled to the immediate possession of said real property, and the respondents are clouding said real property as alleged in the complaint.” In other words, as we understand the contention of counsel for appellants, we are asked to make the order mentioned, for the reason that the answer of defendants failed to deny that they had no right, title, interest, claim, or demand in the property in question. In view of the fact, as appears from the complaint of appellants, that respondents are seeking to satisfy a judgment in favor of one. of the respondents and against the appellants, it would indeed be a rather remarkable situation if respondents were aiming to sell property which belonged to respondents, or either of them, instead of property of appellants. We cannot imagine whose property respondents would sell if not the property of appellants. Surely they would not sell the property rights of respondents. However, if respondents, or either of them, had or claimed an interest in the property (not adverse to appellants), we know of no reason why they might not sell such interest in the property as appellants might have, whether it be an undivided one-half or an equity. As we read the complaint, respondents are seeking to sell whatever interest appellants have in the property, and we know of no way to stop them, so long as the judgment stands upon which the execution was issued. — 16 — 1. Plaintiff’s complaint cannot be construed as one to quiet title, either under our statute or independent of statute. Section 5514, Revised Laws of Nevada, relative to actions to quiet title, reads: "An action may be brought by any person against another who claims an estate or interest in real property, adverse to him, for the purpose of determining such adverse claim.” Mr. Pomeroy, in his work on Code Remedies (3d ed.), at section 363, says: "The nature of the action to quiet title is such that it is impossible to lay down any but the most general rule in relation to its parties defendant. The very object of the proceeding assumes that there are other claimants adverse to the plaintiff, setting up titles and interests in the land or other subject-matter hostile to his. Of course, all these adverse claimants are proper parties defendant, and if the decree is to accomplish its full effect of putting all litigation to rest, they are necessary defendants. Originally, and independent of statute, this particular jurisdiction of equity was only invoked when either many persons asserted titles adverse to that of the plaintiff, or when one person repeatedly asserted his single title by a succession of legal actions, all of which had failed, and in either case the object of the suit was to settle the whole controversy in one proceeding. The action has, however, been greatly extended by statute, especially in the Western States, and is there an ordinary means of trying a disputed title between two opposite claimants. ” The court, in Low v. Staples, 2 Nev. on page 213, in speaking of the effect of the statutory action to quiet title, as the statute existed at that time, said: " * * * The old equity jurisprudence of the court is extended, but further than this wé do not think it affected. ” Thus it will be seen that there is practically no difference in the nature of the action under our statute and as it exists independent of statute, and hence .we should — 17 — have very little trouble in determining if the complaint is good. Whether we look to our statute or the nature of the action as it exists independent of statute to ascertain the essentials of a complaint in an action to quiet title, we find that one of the essentials of a good complaint in such an action is that it must show that the defendants claim an interest in the property adverse to the plaintiffs. 2. There is no such allegation in the complaint in this case, or anything approaching it; hence the complaint does not state a cause of action to quiet title. But it is said that, as respondents did not urge this point in the lower court, it cannot be urged here. In view of the record in this case, as made in the lower court, we do not deem it necessary to decide this question, though we might call attention to the fact that section 5045 of the Revised Laws provides what shall and what shall not be waived by failure to demur. As we read the record in this case, the complaint was drawn and the case tried upon the theory that to permit a sale under the judgment pleaded in the complaint would cast a cloud upon plaintiffs’ title, and that, in view of the claim that the property was exempt as a homestead, a court of equity should not permit such a cloud to be cast thereupon, and to prevent it the action was commenced. We are of this opinion for the reason that the complaint does not contain the necessary allegation to constitute it an action to quiet title, but, on the other hand, as appears from that portion of the complaint heretofore stated, it alleges that respondents were "endeavoring to cloud and cast a cloud upon said real property,” and the evidence offered was not such evidence as-would be offered in an ordinary action to quiet title, but such as would be offered in an action to prevent a cloud being cast upon the title of plaintiffs. We think that, in view of the nature of the complaint, counsel for respondents had a right to assume that the action was brought, not to quiet title, but to prevent a cloud being cast upon the title of plaintiffs, and therefore — 18 — was justified in not urging in the trial court that the complaint did not state a cause of action. 3. But, to go a step further, it seems to us that appellants are in a rather peculiar position, in that they did not demur to the sufficiency of the answer of respondents in the court below, or in any way question that it stated a defense to the matter pleaded in the complaint, until after judgment, but now assert that, notwithstanding this fact, they can take advantage of respondents’ failure to demur to the complaint on the ground that it does not state a cause of action. It is the general rule applicable to pleading that a demurrer runs through the whole series of pleadings, and will be sustained to the first defective pleading. (31 Cyc. 338.) Of course, if the answer so aids the complaint as to make out a cause of action against a defendant, the rule would not apply; but such is not the fact in this instance. So it seems that in any event appellants’ contention that this court should reverse the judgment and order that judgment be entered in favor of appellants cannot be sustained. The only reason offered by plaintiffs, either in their complaint or in their evidence, why the property should not be sold, is the claim asserted by them that it is exempt as a homestead. The trial court held that this claim was not well founded, and this finding is not assailed in this court. It is ordered that the judgment be affirmed. Norcross, C. J.: I concur.