Dillon v. Leger

Belcher, C. C. — This action was commenced to determine a contest, arising in the surveyor-general’s office and referred to the court below, as to which of the parties was entitled to purchase from the state a certain half-section of school land.

In the complaint it is alleged that the plaintiff made his application to purchase the land on the thirteenth day of February, 1883, and filed therewith his affidavit, setting forth all the facts required by the statute at that time, and among others that he was an actual settler on the land; that the defendant Saloude filed his affidavit [269]and application to purchase the land on the twenty-third day of October, 1875, but that he never at any time was a settler thereon, or in the occupation of any part thereof; that the defendant St. Leger filed his affidavit and application to purchase the land on the tenth day of April, 1877, but that he never was a settler thereon, never resided thereon, and never was in the occupation of any part thereof.

The complaint did not allege that the land was suitable for cultivation.

The defendant Saloude demurred to the complaint, and his demurrer was overruled, and thereupon he declined to answer.

The defendant St. Leger answered, setting up his application to purchase the land, on the tenth day of April, 1877; and the facts stated in his affidavit, which were all the facts required by the statute then in force to be stated. He then alleged that the land was not suitable for cultivation, but did not allege that he was ever a settler thereon.

The plaintiff demurred to the answer, on the ground that it did not state facts sufficient to constitute a defense to the action, or to show that the defendant was entitled to purchase the land in controversy.

The court sustained the demurrer, and thereupon, after hearing testimony on the part of the plaintiff, entered judgment that the plaintiff was, and the defendants were not, entitled to purchase the land from the state.

The appeal is by St. Leger from this judgment.

The only question presented for decision is: Did the answer of the appellant state facts which, being proved, entitled him to purchase the land ?

In cases of this kind each party is an actor, and “must state in his pleadings all the facts upon which he relies as showing his right to become the purchaser, and the steps he has taken to avail himself of and secure his right to make the purchase”; and failing to do that, he