Ramsey v. Flournoy

Sharpstein, J.: This is a case of conflicting claims to a certain tract of swamp and overflowed land, referred by the Surveyor-General of this State to one of the late District Courts for a final [261]determination. Appellant, Dorris, one of the defendants, filed an answer, which was demurred to, on the ground “that it appears upon the face of said defendant’s answer that he is not entitled to purchase any portion of the land claimed by the plaintiff herein.” The demurrer was sustained and judgment by default entered against appellant, from which he has appealed.

The demurrer was, doubtless, to the whole answer, and if there be more than one count in it, and all are not bad, the demurrer should «have been overruled. As we understand the law, it was necessary for the defendant to show in his answer that he was entitled to purchase the land claimed by the plaintiff, in order to give him a standing in court. The mere denial of the plaintiff’s right to the land would not, without the allegation of facts showing a right in himself, raise any contest between the defendant and plaintiff. Therefore, we think that appellant’s counsel is mistaken in the view which he takes of the denials in the answer. As we interpret the law, those denials alone would constitute no defense in this particular action. An answer containing nothing more might properly be disregarded or stricken out. It would not be sufficient to entitle the defendant interposing it, to a hearing in the case. If not, it would seem to follow that the defendant’s denials can not be treated as constituting an independent count in his answer, and that the demurrer was properly sustained, unless the answer shows that the appellant had a right to purchase the land or some portion of it.

The appellant’s right to contest that of respondent to purchase the land hr controversy depends upon his (appellant’s) right to be deemed a preferred purchaser under the act of April 4th, 1870. (Stats. 1869-70, 878.) That statute recognizes “ all settlers upon the swamp and overflowed lands belonging to the State, whose settlement is evidenced by actual inclosure, or by ditches, plow furrows, or monuments showing clearly the metes and bounds of their possessory claim, and the same are occupied for purposes of tillage or grazing,” as possessing an equitable claim, and entitling them to be deemed preferred purchasers for the period of ninety days after the filing of plats in the United States Land Office of the district in which such land is situated, showing the line [262]