Bell v. Dangerfield

3 N.W. 698, 26 Minn. 307, 1879 Minn. LEXIS 247

• Court: Supreme Court of Minnesota
• Decided: December 11, 1879
• Status: Published

Opinion

Gilfillan, C. J.

Action in partition. Of course the plaintiff cannot maintain the action unless he has some title in the -land. The complaint alleges that plaintiff and the defendant are tenants in common — owners in fee simple of the land. This, with a statement of the proportions in which the parties hold, would be sufficient; but the complaint goes on to show how plaintiff acquired his. title, from which it appears that he claims under a deed from the city of St. Paul, in proceedings to enforce an assessment for local improvements. The only things in such proceedings alleged are the deed and the certificate of sale. No sale could be made or deed executed, without a judgment. There is no allegation of rendition of judgment. From the complaint, then, no authority in the city or its treasurer to execute the deed, or issue the certificate of sale, appears. It may be that, as matter of: proof, when on the trial the deed or certificate of sale should be introduced, it would, prima facie, establish a judgment; but as a matter of pleading, the allegation of a deed or certificate is not equivalent to, nor does it dispense with, the necessity of an allegation of a judgment authorizing the sale. This complaint, therefore, did not state a cause of action, and the court below was right in dismissing the action.

Order affirmed.