The opinion of the court was delivered by
Brewer, J.:
This was an action to quiet title. Plaintiff alleged title and possession, and that defendants claimed title. [425] Defendants in their answer, and by way of cross-bill, alleged title in themselves, that plaintiff claimed title, but that such title was without foundation, and prayed that their title might be quieted. A decree was entered in favor of the defendants. To reverse this decree plaintiff comes to this court.
1. Where record does not cointain all the evidence. There are two principal questions before us on the record. Does the answer state a cause of action in favor of the defendants, and against the plaintiff? Do the facts as found, sustain the decree? We do not think the question of the sufficiency of the evidence to support the findings is presented by the record, for the reason that it c]oes not appear that all the evidence is preserved. There is no affirmative statement that the record contains all the evidence. Perhaps that is not always necessary. Following certain testimony offered by the plaintiff, is the statement, “Plaintiff then>rested.” Asimilar statement follows testimony offered by the defendants. Then comes testimony of plaintiff, given in answer to the testimony of defendants in support of their cause of action, followed by a like statement. After this appears testimony of defendants in reply, but without any similar closing statement. Each party’s testimony opens with a statement that he “ offered testimony as follows, to-wit.” Now, whatever might be the legitimate inference, if the defendants’ reply-testimony had been followed by a statement that, “here the defendants rested,” .or any statement clearly showing that at such point the introduction of testimony ceased, without any such statement it is clear that there is nothing upon which to found an assertion that all the testimony is given. Much other testimony might have been given, making clear and plain the very matters which plaintiff’s counsel say are not proved, and still not a statement in the record be untrue in letter or spirit. We pass therefore to the first question.
3. Petition-objection-sufficiency.4. General averment when sufficient. Does the answer of defendants state a cause of action in their favor and against the plaintiff? And here it may be remarked, that no objection to the sufficiency of the answer was raised in the court below. The [426] parties tried the case as though defendants had stated a good cause of action against plaintiff. In this court, for the first time, is any. question made as to its sufficiency. In such a case the objection is good only when there is a total* failure to allege some matter essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law: Laithe v. McDonald, 7 Kas. 254; Mitchell v. Milhoan, 11 Kas. 617. Turning to the pleadings,-, we find that the answer alleges, in that defense which is in the nature of a cross-bill, or counterclaim, that on April 27th 1858, and for a long time prior thereto, the land in controversy was a part of the public lands and open to settlement and preemption at the land-office at Lecompton; that Thomas Taylor was a citizen of the United States, a resident of Kansas Territory, and entitled to a preemption-right to said lands; that he did upon that day, in strict conformity to the acts of congress thereon, preempt said lands at said land-office, pay the full amount ($210) therefor, and receive a certificate of purchase, entry, and preemption, duly signed and executed by the proper officers, of all of which facts Daniel Wisely, his heirs, grantees, and the plaintiff, had due and legal notice; that said Taylor’s title, by certain conveyances, describing them, is vested in defendants; that after such preemption and purchase, and on June 20th 1859, Daniel Wisely, by some means and in some manner unknown to the said Taylor, or to these defendants, and without the assent, knowledge, consent or notice of his so doing, obtained a pretended certificate of preemption or purchase from said land-office, and afterward, and on August 1st 1860, a patent for said lands; that the issue and delivery of said certificate and patent to said Wisely were in violation of the laws of the United States, in violation of the rights of said Thomas Taylor, and these defendants, and void as against them, and by said certificate and patent no valid legal or equitable title was conveyed to said Wisely, and that said Wisely’s claim had passed to the plaintiff. This was followed by a prayer for a [427] decree quieting title and for possession of the lands. Upon this answer counsel for plaintiff claim, that “ The cross-bill should affirmatively show that Taylor had a right to preempt the land in question, It should appear therein, (1st,) that he was the head of a family, or a single man over the age of twenty-one years, (2d,) a citizen of the United States, or that he had filed his declaration of intention to become a citizen according to law, (3d,) that he was an inhabitant on the tract sought to be entered, '(4th,) upon which in person he had made a settlement and erected a dwelling-house since the first of June 1840, and prior to the time when the land was applied for — the Indian title having been extinguished, and the land surveyed.” Perhaps all these matters are essential to give a right to preempt; and if objection had been raised at the proper time, perhaps the court would have been compelled to sustain it. But it is alleged that he was entitled to a preemption-right to said lands, and that he did preempt them in strict conformity to the requirements of the acts of congress thereon. Now, this as a general allegation includes and covers all those specific statements; and if parties are content to try their case upon such general allegation, they waive all objection to it.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to quiet title. Plaintiff alleged title and possession, and that defendants claimed title. [425] Defendants in their answer, and by way of cross-bill, alleged title in themselves, that plaintiff claimed title, but that such title was without foundation, and prayed that their title might be quieted. A decree was entered in favor of the defendants. To reverse this decree plaintiff comes to this court.
1. Where record does not cointain all the evidence. There are two principal questions before us on the record. Does the answer state a cause of action in favor of the defendants, and against the plaintiff? Do the facts as found, sustain the decree? We do not think the question of the sufficiency of the evidence to support the findings is presented by the record, for the reason that it c]oes not appear that all the evidence is preserved. There is no affirmative statement that the record contains all the evidence. Perhaps that is not always necessary. Following certain testimony offered by the plaintiff, is the statement, “Plaintiff then>rested.” Asimilar statement follows testimony offered by the defendants. Then comes testimony of plaintiff, given in answer to the testimony of defendants in support of their cause of action, followed by a like statement. After this appears testimony of defendants in reply, but without any similar closing statement. Each party’s testimony opens with a statement that he “ offered testimony as follows, to-wit.” Now, whatever might be the legitimate inference, if the defendants’ reply-testimony had been followed by a statement that, “here the defendants rested,” .or any statement clearly showing that at such point the introduction of testimony ceased, without any such statement it is clear that there is nothing upon which to found an assertion that all the testimony is given. Much other testimony might have been given, making clear and plain the very matters which plaintiff’s counsel say are not proved, and still not a statement in the record be untrue in letter or spirit. We pass therefore to the first question.
3. Petition-objection-sufficiency.4. General averment when sufficient. Does the answer of defendants state a cause of action in their favor and against the plaintiff? And here it may be remarked, that no objection to the sufficiency of the answer was raised in the court below. The [426] parties tried the case as though defendants had stated a good cause of action against plaintiff. In this court, for the first time, is any. question made as to its sufficiency. In such a case the objection is good only when there is a total* failure to allege some matter essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law: Laithe v. McDonald, 7 Kas. 254; Mitchell v. Milhoan, 11 Kas. 617. Turning to the pleadings,-, we find that the answer alleges, in that defense which is in the nature of a cross-bill, or counterclaim, that on April 27th 1858, and for a long time prior thereto, the land in controversy was a part of the public lands and open to settlement and preemption at the land-office at Lecompton; that Thomas Taylor was a citizen of the United States, a resident of Kansas Territory, and entitled to a preemption-right to said lands; that he did upon that day, in strict conformity to the acts of congress thereon, preempt said lands at said land-office, pay the full amount ($210) therefor, and receive a certificate of purchase, entry, and preemption, duly signed and executed by the proper officers, of all of which facts Daniel Wisely, his heirs, grantees, and the plaintiff, had due and legal notice; that said Taylor’s title, by certain conveyances, describing them, is vested in defendants; that after such preemption and purchase, and on June 20th 1859, Daniel Wisely, by some means and in some manner unknown to the said Taylor, or to these defendants, and without the assent, knowledge, consent or notice of his so doing, obtained a pretended certificate of preemption or purchase from said land-office, and afterward, and on August 1st 1860, a patent for said lands; that the issue and delivery of said certificate and patent to said Wisely were in violation of the laws of the United States, in violation of the rights of said Thomas Taylor, and these defendants, and void as against them, and by said certificate and patent no valid legal or equitable title was conveyed to said Wisely, and that said Wisely’s claim had passed to the plaintiff. This was followed by a prayer for a [427] decree quieting title and for possession of the lands. Upon this answer counsel for plaintiff claim, that “ The cross-bill should affirmatively show that Taylor had a right to preempt the land in question, It should appear therein, (1st,) that he was the head of a family, or a single man over the age of twenty-one years, (2d,) a citizen of the United States, or that he had filed his declaration of intention to become a citizen according to law, (3d,) that he was an inhabitant on the tract sought to be entered, '(4th,) upon which in person he had made a settlement and erected a dwelling-house since the first of June 1840, and prior to the time when the land was applied for — the Indian title having been extinguished, and the land surveyed.” Perhaps all these matters are essential to give a right to preempt; and if objection had been raised at the proper time, perhaps the court would have been compelled to sustain it. But it is alleged that he was entitled to a preemption-right to said lands, and that he did preempt them in strict conformity to the requirements of the acts of congress thereon. Now, this as a general allegation includes and covers all those specific statements; and if parties are content to try their case upon such general allegation, they waive all objection to it.
5.Allegations showing title held in trust, Again, it is claimed by counsel that the allegations of the answer show no fraud, imposition, or trust, and that unless some of these appear, a state court will not take cognizance of the case; that the allegations are, that the # ' ° ? issue of the certificate and patent were in violation of the laws of the United States, and of the rights of Taylor — without showing how or in what respect they were so in violation. To this it may be replied, that the allegations show a valid preemption and purchase by Taylor, that of all this Wisely had full knowledge, that more than a year thereafter in some manner and by some means to,the defendants unknown Wisely obtained a certificate of purchase and patent, and that his so doing was a' violation of the laws of the United States and of the rights of Taylor and his grantees. Does not this disclose a trust ? Does it not show a complete [428] equitable title in Taylor, and that Wisely by some illegal means had acquired the- legal title ? Is not the legal title then held in trust for the equitable ? It is true, the precise steps by which this legal title was acquired, are not shown, and the pleading could have been more full and specific; but still the fact is alleged, that it was acquired after the vesting of 'a coráplete equitable title in Taylor, and by some illegal means. This is now sufficient. It shows the equity in one person, the legal title in another, obtained illegally, and with full knowledge of the equity. In Stark v. Starrs, 6 Wallace, 419, it is said to be the well-settled doctrine, “that where one party has acquired the legal title to property to which another has a better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title.” See also, Garland v. Wynn, 20 How. (U. S.) 6; Hughes v. U. S., 11 How. 568, and 4 Wall. 232; Lindsey v. Hawes, 2 Black, 554. These are all cases of contested titles; and in the last three cases a prior certificate prevailed over a subsequent patent. Counsel contends, that “ It is a presumption of law that the patent to Wisely passed the whole title to the land in controversy. The patent itself is prima facie evidence that all the incipient steps had been regularly taken, authorizing the issuing of the same.” This doubtless is correct; and it is a proposition equally correct when applied to the preemption certificate to Taylor. That is prima facie evidence that all prior steps had been regularly taken, and that Taylor had acquired the full equitable title. The prima facie evidence of either may be overthrown by other testimony; but in the absence of any other testimony the title which is prior in time is the stronger in right. In Carroll v. Safford, 3 How. 441, the court uses this plain language, quoted in the case of Stone v. Young, 5 Kas. 232: “So far as the rights of the purchaser are concerned, they are protected under the patent-certificate as fully as under the patent. Suppose the officers of the government had sold a tract of land, received the purchase-money, and issued a patent-certificate : can it be contended that they could sell it again, and [429] convey a good title ? They could no more do this than they could sell land a second time which had been previously patented.” It seems to us therefore, that as against any objection that can now be raised the answer must be held sufficient to sustain a decree for affirmative relief.
6. General findings. This really disposes of the case, for in respect to the second question, it may be said that no special findings of fact were demanded, and that while the court does find specially certain facts, it prefaces them with a general finding, that “the allegations, all and singular, contained in the answer of the said defendants are true” — so that, whether the facts specially mentioned in the findings are of themselves sufficient’ to support the decree, is practically immaterial, the court having covered all with a general finding.
7. Action to quiet title. So far as the matter of improvements is concerned, that cannot be inquired into in this case. No judgment for possession was rendered, but only a decree quieting title. Whenever in an action of ejectment judgment is rendered for possession, the question offimprovements under the occupying-claimant act will properly come up for decision.
The judgment will be affirmed.'
It is understood that the case of the same plaintiff against Alexander Brown is similar, and the same judgment will there be entered.
All the Justices concurring.