Leaver v. Smith

JAMES, J.

In this action to quiet title plaintiff had judgment and defendant appeals. The complaint was in the usual form appropriate to the character of the action. In addition to a general denial, the defendant made a special plea in his answer by alleging a former judgment between the parties for the same cause. That portion of the answer is as follows: “That heretofore, to wit, on the- day of March, 1917, an action was commenced by the plaintiff in this court against each of these defendants, wherein it was alleged that the plaintiff was the owner of said property and wherein it was also alleged that the defendants, and each of the defendants, had no right, title, or interest in said property. That the said defendants appeared in said action and the said cause came on regularly for trial before said court on the eleventh day of December, 1917, and thereupon said court duly made and gave judgment against the plaintiff and in favor of defendants thereby adjudging that plaintiff take nothing in said action and that defendants recover their costs.” Samuel T. Smith is the only defendant interested, as the action was dismissed as to Anna May Smith, who was first named in the complaint as Jane Doe. The trial court made particular findings by way of showing the facts upon which the judgment was predicated. From these findings it appears that appellant here, in 1914, became a judgment debtor of one Leaver; that upon execution being levied against the real property herein involved, then belonging to appellant, a sale was made and the property was purchased by the plaintiff, the judgment creditor;

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that the execution sale was made on the third day of February, 1916; that no redemption of the premises having been made in the meantime, deed was delivered to the purchaser on the eleventh day of December, 1917. As to the former judgment pleaded by appellant, the court made its findings as follows: “That it is true that an action was commenced in March, 1917, by plaintiff in this action, and against defendant in this action, for the purpose of quieting title to the premises herein described. That all of the allegations contained in the further and separate answer to plaintiff’s complaint, set out in the answer of defendant herein, are true.” Conclusions of law followed wherein it was determined that the plaintiff should have a decree quieting his title to the property described in the complaint.