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Staley v. Housel.

fact constituting the fraud is averred. A party charging fraud and undue influence must plead the facts. A mere allegation of their existence is not sufficient. (Arnold v. Baker, 6 Neb., 134; Clark v. Dayton, Id., 192; Aultman v. Steinan, 8 Id., 113.)

The evidence tending to show that the deed from Plummer to Christopher was obtained by fraud and undue influence was, however, admissible under the general denial of the answer. The question was squarely presented and decided in Franklin v. Kelley, 2 Neb., 79. It was there held that the defendant, in an action of ejectment, may show that a deed in plaintiff's chain of title was procured by fraud, without specially pleading the fraud in the answer. Chief Justice MASON, in delivering the opinion of the court, says:

"In whatever aspect the offer of the defendants is regarded, it is within the rule that fraud may be shown in ejectment to avoid a deed; and the refusal of the court to hear the evidence was error. One other matter only remains to be noticed. It is insisted that this matter should have been specially pleaded. It is undoubtedly true, that the theory of the system of pleading under the Code generally is, that the facts necessary to constitute a cause of action or defense shall be stated. But, in respect of actions for the recovery of real property, another rule has been adopted. Why this is so is not very clear. It may be because, as two trials, of course, are given in that class of actions, the parties are supposed to learn, from what is shown on the first, what will be the issue on the final trial. But, whatever the reason, it is apparent that in this class of actions, as also in cases of replevin, the facts need not be stated. That being the rule of pleading contained in the Code, we have only to enforce it here."

The decision has never been directly overruled, nor its soundness questioned, but the same principle was recognized and applied by this court in Dale v. Hunneman, 12

Staley v. Housel.

Neb., 221. That was an action of ejectment, the answer being a general denial. MAXWELL, Ch. J., in the opinion says: "Where the facts stated in the petition are denied, the plaintiff, to be entitled to recover, must prove that he possesses a legal estate in the premises, and is entitled to the possession of the same. If the defendant possesses an equity which negatives the plaintiff's right of possession, such equity may be proved under a general denial, as it is a mere defense to the action. But if the defendant seek affirmative relief, such as to enforce a contract which does not give him the right of possession, but does give him a right to demand a specific execution of the contract by the plaintiff, upon which the right to continue in possession of the premises depends, he must plead the facts entitling him to such relief. And his answer must contain all the facts necessary to entitle him to such relief."

Numerous cases are cited by defendants' counsel from the courts of other states which sustain the position for which they contend, among others, Stout v. Hyatt, 13 Kan., 242; Clayton v. School District, 20 Id., 256; Wicks v. Smith, 18 Id., 508; Armstrong v. Brownfield, 32 Id., 116; Jones v. Cohen, 82 N. Car., 75; Lain v. Shepardson, 23 Wis., 224; Mather v. Hutchinson, 25 Id., 27; Williams v. Barnett, 52 Tex., 130; and Sparrow v. Rhoades, 76 Cal., 208. The case of Mathers v. Hutchinson, supra, is quite in point. The action was to recover real estate, the answer being a general denial. The defendant offered testimony tending to prove that a certain tax deed, under which the plaintiff claimed title, was procured by fraud. The evidence was objected to upon the ground that the facts constituting the fraud were not pleaded in the answer. The court in passing upon the question says: "The complaint was in the ordinary form, and did not disclose the origin of the plaintiff's title. And we have held that in such an action, under such a complaint, the defendant, under the general denial, must be allowed to prove anything which

Staley v. Housel.

would defeat the title offered by the plaintiff. Any other rule would place him at a great disadvantage. The plaintiff, not being bound to disclose the title relied on in his complaint, may, at the trial, offer any evidence of title which he pleases. With such a rule as to the plaintiff, it would be manifestly unjust to exclude the defendant from proving that the title offered by the plaintiff was void for fraud or any other reason, because he had not specifically set forth the facts in his answer. It would require him to foreknow and avoid, by specific allegations, a title which the plaintiff was not bound to disclose at all."

After a careful examination of the authorities we are satisfied that the rule is correctly stated in Franklin v. Kelley and should be adhered to. The general rules of pleading do not apply to actions like this. The plaintiff is not required to disclose in his petition the origin of his title, nor the facts upon which he relies for a recovery. It is sufficient to aver that he has a legal estate in, and is entitled to, the possession of the property in controversy, and that the defendant unlawfully withholds possession. (Code, sec. 626.) The statute has also provided that in an action of ejectment it is sufficient for the defendant to deny generally the title averred in the petition. (Code, sec. 627.) Under such an answer he may prove any fact tending to show that the plaintiff has not the title or the right of possession to the land in controversy. If the defendant in ejectment desires affirmative relief, he must set up in the answer the facts entitling him thereto. The rule for which plaintiff contends would place the defendant at a disadvantage, as it would oblige him to anticipate the nature of plaintiff's evidence, and allege specifically in his answer a defense to a deed which plaintiff might introduce under his general allegation of title. Such a rule would be not only unjust but contrary to the meaning of the section of Code to which reference has been made.

The case of Uppfalt v. Nelson, 18 Neb., 533, is cited by

Staley v. Housel.

plaintiff, claiming that it, in effect, overrules Franklin v. Kelley, supra, upon the question under consideration, What the equities of the defendant in the case cited were, and whether he was seeking affirmative relief without having pleaded the facts in his answer, we are not advised, as the published opinion does not disclose, nor has the writer the record at hand so he can determine the same. If the defendant therein was in the position of seeking affirmative equitable relief, then the decision accords with the views we have expressed above, and is in harmony with the second Nebraska case. There is language used in the opinion of Uppfalt v. Nelson, from which the inference could be drawn that any equitable matter relied upon by defendant in an action of ejectment to defeat the title set up by the plaintiff, or his right to possession, to be available must be pleaded in the answer, which is contrary to the principle decided in Franklin v. Kelley, and Dale v. Hunneman. In so far as there is an apparent or real conflict in the opinions referred to, the two reported in the second and twelfth volumes of our reports, we are of the opinion, upon reason as well as authority, should be adhered to.

Was the jury warranted in finding that the deed from Plummer to Kate Christopher was without consideration and obtained by fraud and undue influence? The evidence clearly shows that at the time the conveyance was executed Plummer was a drinking man, about sixty years. of age, feeble physically, irritable in temperament, childish, and at times acted like a person unbalanced mentally. For some time prior to and on the day of the making of the deed Kate Christopher had been living with him in the house on the lot in litigation. The house had three rooms, contained but one bed; Kate Christopher was thirty or thirty-five years of age, strong, vigorous, and intelligent, in appearance handsome and attractive, possessed of no money or property. Plummer was completely under her influence and control. After the making of the deed

Staley v. Housel.

she left him and married one Graham.

It appears from the testimony of Byron Reed, the officer before whom the acknowledgment was taken, that she paid no money to Plummer when the deed was executed.

Mrs. Johanna Knight testified that she was acquainted with Kate Christopher while she lived with Plummer; that after the death of the latter she called to see witness and they had a conversation in regard to the deed. We quote from the bill of exceptions:

Q. What did she say, if anything, about getting the property?

A. She introduced herself to me as "Mrs. Graham." I said, "I thought you was Mr. Plummer's wife." "No," she said, "I never was married to him; I wasn't his wife." I said to her, "I understood he signed his lot away to you, or you got it away some way from him." She said, "Yes, he signed it to me," she says, "he signed it to me for me to take care of him." "Well," I says, "why didn't you stay with him and take care of him? He died a pauper, and had nothing to take care of himself with." She says, "I couldn't live there with him because he was jealous of There was no living with him."

me.

Q. What further was said, if anything, about this deed? Let me ask you if anything was said about the heirs setting aside this deed or trouble that would come from it?

A. I said to her, "What do you intend to do with this property?" She says: "I will sell it if I can." I says to her, "Then I wouldn't touch it. I wouldn't touch heirs' property." Because Mr. Plummer told me he had a daughter, and I says, "Some day, if she is a smart woman, she will come and tear your title all to pieces, because you did not perform your duty to Plummer. We saw him starving and suffering." She said, "She didn't care," and that was her reply.

Q. What was said, if anything, by her about Plummer signing this deed when he didn't know what he was doing?

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