Sheets v. Prosser
North Dakota Supreme Court
Appeal from District Court, Nelson County; Fisic, J. Action by A. E. Sheets against W. B. Prosser. From an order overruling a demurrer to the complaint, defendant appeals. Uniting action to quiet title with one for a forfeiture is a misjoinder. Rev. Codes 1905, section 6877; Jasper v. Hazen, 2 N. D. 401, 51 N. W. 583, 23 L. R. A. 58. Where plaintiff’s bill to quiet title shows a valid interest in the defendant it is demurrable. 17 Enc. PL & Pr. 336. Sub.
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Appeal from District Court, Nelson County; Fisic, J. Action by A. E. Sheets against W. B. Prosser. From an order overruling a demurrer to the complaint, defendant appeals. Uniting action to quiet title with one for a forfeiture is a misjoinder. Rev. Codes 1905, section 6877; Jasper v. Hazen, 2 N. D. 401, 51 N. W. 583, 23 L. R. A. 58. Where plaintiff’s bill to quiet title shows a valid interest in the defendant it is demurrable. 17 Enc. PL & Pr. 336. Sub. Div. 5, Id. 340. Failure to foreclose a lien upon demand to do so, destroys not the lien, but the remedy; and when seeking to quiet title…
1DissentMorgan, C. J.
I concur in the result, but I do not agree with the conclusion on the first ground of demurrer to the second cause of action that the Greenburg case, 5 N. D. 483, ■67 N. W. 597, controls this case. In this case the complaint, construed in connection with the exhibits attached to and made a part of the complaint, states that the plaintiff seeks to recover $100, “the penalty provided by law,” on account of the failure of the defendant to discharge the lien after having been required to do so after compliance by the plaintiff with all the statutory requirements necessary to be performed before…
2Cases cited1 opinion
- Greenberg v. Union Nat'l BankNorth Dakota Supreme Court · 1896
3Cited by1 opinion
- Sheets v. ProsserNorth Dakota Supreme Court · 1907