The opinion of the court was delivered by
Keaton, J.:
The first contention of plaintiff in error is that the petition of plaintiff below fails to state facts sufficient to constitute a cause of action for the reason that, first, it does not show such an assignment from Sawyer to Severy as entitled the latter to maintain his action and, second, it fails to show any leave of court for the bringing of same.
[637]*637We do not think this position tenable. Besides the caption, where it is stated that plaintiff, sues as the assignee of Sawyer, it is further alleged in said petition ‘‘that- the said C. L. Severy is the duly and legally appointed, qualified and acting assignee of the said S. W. Sawyer.” While this allegation is certainly somewhat uncertain and indefinite in many particulars, and would doubtless have been held insufficient had it been challenged by a motion to make more definite and certain, yet we are not prepared to say that is bad as against a general demurrer, and, when its sufficiency is questioned by neither motion nor demurrer, and defendant’s answer shows that he thoroughly understood what was meant by said allegation, we are clearly of the opinion that the trial court committed no error in overruling the objection of defendant’s counsel to the introduction of any evidence under said petition. ’ The cases cited by counsel for plaintiff in error do not support their contention. The one most nearly in point is City of Atchison v. Twine, 9 Kan. 350, wherein it is held that, “in such action, whether plaintiff is administrator or not is an issuable fact, and that he was such administrator should in some way appear in the petition.”
In that case, there was no averment, in the petition, whatever, concerning the fact that plaintiff was administrator of Greorge Johnson, deceased, on account of whose death the action was brought. Suppose the petition therein had contained an allegation to the effect that plaintiff “is the duly and legally appointed and acting” administrator of the estate of the said Greorge Johnson, deceased, without stating when, by whom or where said appointment was made, can it be contended that the supreme court which decided the case would have held this averment fatally defective when objected to for the [638]*638first time upon the introduction of testimony? We think no such inference can possibly be drawn from the language used in that decision. There is a wide difference between an entire failure to plead a material and necessary matter and defectively alleging the same.
“A petition which states facts sufficient to constitute a cause of action must be held sufficient on the introduction of any evidence under it, however informal, indefi* nite, and uncertain it may be in some of its statements of fact.” (Fitzpatrick v. Gebhart, 7 Kan. 35).
“The questions whether the petition states facts sufficient to constitute a cause of action, and whether the petition and the findings taken together sustain the judgment of the court below, may generally be considered by the supreme court, whether any exception has been taken to the ruling of the court below or not. But the subsequent proceedings often cure a defective petition; and when the objection to the petition is made in any way, except by demurrer, or by a motion to require the plaintiff to make his petition, or certain allegations thereof, more formal, or more definite and certain, the objection should generally be overruled unless there is a total failure to allege some matter essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.” (Mitchell v. Milhoan, 11 Kan. 617).
“Where the question of the sufficiency of a petition is raised for the first time by an objection to the introduction of any evidence under it, and not raised otherwise, courts will always construe the allegations of the petition very liberally, so as to sustain the petition if it can be sustained; and if anything should intervene between the filing of the petition and the final rendering of the judgment which could, by a fair and reasonable intendment, be construed to cure the defective allegations of the petition, the courts will hold that such defective allegations are thereby cured.” (Barkley v. State, 15 Kan. 99).
[639]*639“Where some of the facts necessary to constitute a cause of action are stated in the petition only inferentially, such petition may, nevertheless, be held good, where no objection is made to it except by objecting to the introduction of any evidence under it on the ground that it does not state facts sufficient to constitute a cause of action.” (Bailey v. Dodge, 28 Kan. 72).
See, also, upon this question: The Western Massachusetts Ins. Co. v. Duffy, 2 Kan. 347; Polster v. Rucker, 16 Kan. 115; Moody v. Arthur, id. 419; Reeve v. Downs, 22 Kan. 330; Grandstaff v. Brown, 23 Kan. 176; Clay v. Hildebrand, 34 Kan. 694, 9 Pac. 466; Schenk v. Hartford Fire Ins. Co. [Cal.], 11 Pac. 807; Ladd v. Piggot, [Ill.], 2 N. E. 503; Lakeshore M. S. Ry. Co. v. O’Connor, [Ill.], 3 N. E. 501; Hedderly v. Downs, [Minn.], 17 N. W. 274.
We are aware of no law requiring an assignee, for the benefit of creditors, chosen under said ch. 6, Oklahoma Statutes, 1890, to obtain leave of the district court of the county where appointed before he can bring suit on a claim due the estate.
Counsel for plaintiff in error next contend that he had a right to dispute the title of his landlord to the lots in question, and set up claim thereto as an occupant under the townsite laws upon the failure of Sawyer’s title, as claimed through Foreman, the original grantor, and that, by reason of such failure of title and the interest acquired by virtue of his said claim as an occupant, he was no longer liable to his said landlord for rent for the use and occupancy of said lots and the improvements thereon. This position, we think, is equally untenable for the reasons: First, because the facts in this case do not show such a failure of title in his landlord as to authorize plaintiff in error to dispute it in so far as possession and payment of rent are concerned: second, [640]*640because plaintiff in error recognized the right of his landlord, to the possession of said premises, by the payment of rent for several months after the alleged failure of title.
According to the evidence and agreed facts in this case, said S. W. Sawyer was the only occupant of the lots in question during the month of May, 1892, when the tract, including same, was entered, as a townsite, for the use and benefit of the occupants thereof; the occupancy of plaintiff in error as Sawyer’s tenant being, in legal effect, the occupancy of Sawyer in person. But for this tenancy, plaintiff in error, so far as shown by the record, would never have been an occupant of these premises, and every principle of law and justice require that such occupany shall not be used to defeat the right of his landlord to the use and possession of said property. The cases cited by counsel for plaintiff in error are in entire harmony with this rule. In McKie v. Anderson, [Tex.], 14 S. W.
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The opinion of the court was delivered by
Keaton, J.:
The first contention of plaintiff in error is that the petition of plaintiff below fails to state facts sufficient to constitute a cause of action for the reason that, first, it does not show such an assignment from Sawyer to Severy as entitled the latter to maintain his action and, second, it fails to show any leave of court for the bringing of same.
[637]*637We do not think this position tenable. Besides the caption, where it is stated that plaintiff, sues as the assignee of Sawyer, it is further alleged in said petition ‘‘that- the said C. L. Severy is the duly and legally appointed, qualified and acting assignee of the said S. W. Sawyer.” While this allegation is certainly somewhat uncertain and indefinite in many particulars, and would doubtless have been held insufficient had it been challenged by a motion to make more definite and certain, yet we are not prepared to say that is bad as against a general demurrer, and, when its sufficiency is questioned by neither motion nor demurrer, and defendant’s answer shows that he thoroughly understood what was meant by said allegation, we are clearly of the opinion that the trial court committed no error in overruling the objection of defendant’s counsel to the introduction of any evidence under said petition. ’ The cases cited by counsel for plaintiff in error do not support their contention. The one most nearly in point is City of Atchison v. Twine, 9 Kan. 350, wherein it is held that, “in such action, whether plaintiff is administrator or not is an issuable fact, and that he was such administrator should in some way appear in the petition.”
In that case, there was no averment, in the petition, whatever, concerning the fact that plaintiff was administrator of Greorge Johnson, deceased, on account of whose death the action was brought. Suppose the petition therein had contained an allegation to the effect that plaintiff “is the duly and legally appointed and acting” administrator of the estate of the said Greorge Johnson, deceased, without stating when, by whom or where said appointment was made, can it be contended that the supreme court which decided the case would have held this averment fatally defective when objected to for the [638]*638first time upon the introduction of testimony? We think no such inference can possibly be drawn from the language used in that decision. There is a wide difference between an entire failure to plead a material and necessary matter and defectively alleging the same.
“A petition which states facts sufficient to constitute a cause of action must be held sufficient on the introduction of any evidence under it, however informal, indefi* nite, and uncertain it may be in some of its statements of fact.” (Fitzpatrick v. Gebhart, 7 Kan. 35).
“The questions whether the petition states facts sufficient to constitute a cause of action, and whether the petition and the findings taken together sustain the judgment of the court below, may generally be considered by the supreme court, whether any exception has been taken to the ruling of the court below or not. But the subsequent proceedings often cure a defective petition; and when the objection to the petition is made in any way, except by demurrer, or by a motion to require the plaintiff to make his petition, or certain allegations thereof, more formal, or more definite and certain, the objection should generally be overruled unless there is a total failure to allege some matter essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.” (Mitchell v. Milhoan, 11 Kan. 617).
“Where the question of the sufficiency of a petition is raised for the first time by an objection to the introduction of any evidence under it, and not raised otherwise, courts will always construe the allegations of the petition very liberally, so as to sustain the petition if it can be sustained; and if anything should intervene between the filing of the petition and the final rendering of the judgment which could, by a fair and reasonable intendment, be construed to cure the defective allegations of the petition, the courts will hold that such defective allegations are thereby cured.” (Barkley v. State, 15 Kan. 99).
[639]*639“Where some of the facts necessary to constitute a cause of action are stated in the petition only inferentially, such petition may, nevertheless, be held good, where no objection is made to it except by objecting to the introduction of any evidence under it on the ground that it does not state facts sufficient to constitute a cause of action.” (Bailey v. Dodge, 28 Kan. 72).
See, also, upon this question: The Western Massachusetts Ins. Co. v. Duffy, 2 Kan. 347; Polster v. Rucker, 16 Kan. 115; Moody v. Arthur, id. 419; Reeve v. Downs, 22 Kan. 330; Grandstaff v. Brown, 23 Kan. 176; Clay v. Hildebrand, 34 Kan. 694, 9 Pac. 466; Schenk v. Hartford Fire Ins. Co. [Cal.], 11 Pac. 807; Ladd v. Piggot, [Ill.], 2 N. E. 503; Lakeshore M. S. Ry. Co. v. O’Connor, [Ill.], 3 N. E. 501; Hedderly v. Downs, [Minn.], 17 N. W. 274.
We are aware of no law requiring an assignee, for the benefit of creditors, chosen under said ch. 6, Oklahoma Statutes, 1890, to obtain leave of the district court of the county where appointed before he can bring suit on a claim due the estate.
Counsel for plaintiff in error next contend that he had a right to dispute the title of his landlord to the lots in question, and set up claim thereto as an occupant under the townsite laws upon the failure of Sawyer’s title, as claimed through Foreman, the original grantor, and that, by reason of such failure of title and the interest acquired by virtue of his said claim as an occupant, he was no longer liable to his said landlord for rent for the use and occupancy of said lots and the improvements thereon. This position, we think, is equally untenable for the reasons: First, because the facts in this case do not show such a failure of title in his landlord as to authorize plaintiff in error to dispute it in so far as possession and payment of rent are concerned: second, [640]*640because plaintiff in error recognized the right of his landlord, to the possession of said premises, by the payment of rent for several months after the alleged failure of title.
According to the evidence and agreed facts in this case, said S. W. Sawyer was the only occupant of the lots in question during the month of May, 1892, when the tract, including same, was entered, as a townsite, for the use and benefit of the occupants thereof; the occupancy of plaintiff in error as Sawyer’s tenant being, in legal effect, the occupancy of Sawyer in person. But for this tenancy, plaintiff in error, so far as shown by the record, would never have been an occupant of these premises, and every principle of law and justice require that such occupany shall not be used to defeat the right of his landlord to the use and possession of said property. The cases cited by counsel for plaintiff in error are in entire harmony with this rule. In McKie v. Anderson, [Tex.], 14 S. W. 576, it is held that, “One in possession of land, as owner of an individual share, having accepted a lease of the other interest, may, without first giving up possession, assert an adverse title against the lessor in an action by the latter of trespass to try title, and for partition. * * The rule, that a tenant cannot deny his landlord’s title, is limited to suits for possession only, and does not apply in an action of trespass to try title and for partition, in which the title itself is put in issue.” And, in Smith v. Smith, [Tex.], 16 S. W. 637, the holding is that, “In an action for rent the tenant counter-claimed that, prior to the execution of the contract for rent, he held the fee to the land in controversy, and, in order to secure the landlord' as surety upon a note given by him (tenant) to a third party, he had conveyed the land to the landlord by absolute deed, with the understanding [641]*641that it was to be a mortgage, or that the land was to be held in trust until a sale could be effected. It was further averred that a sale had been made by the landlord, and that a balance was due the tenant after paying the note and the rent. Held, that the exelusion of evidence tending to show the real relation of the parties was error, since the rule’ which prevents a tenant from disputing his landlord’s title cannot be applied so as to preclude a grantor of land from showing that the deed was intended only as a mortgage or to place land in trust.”
We find nothing at page 733, 16 So., (cited by said counsel), nor any where in the decision of the supreme court of Louisiana in Cochrane v. Gilbert, occupying pages 731 to 734, of said report, which is at all applicable to the proposition under consideration. We desire, in this connection, to express our disapproval of the practice of counsel merely citing, in their briefs, the volumes and pages of reports without giving the title of the cases to which reference is made. After a careful examination of Judge Hawley’s opinion in Lakin v. Dolly, 53 Fed. 333, we find nothing therein which is in conflict with the position taken by us upon this question, but think said position fully sustained by the decision of this court in Hamill v. Jalonick, 3 Okla. 223, 41 Pac. 139, wherein it is held‘that, “The suit was not for the purpose of trying the question of title nor as between the parties was such question involved. Under § 1 two kinds of actions are contemplated; one may be brought to determine the title, and the other, the right of possession. This action was for the possession of the property. Jalonick claimed as a landlord against Hamill, his tenant. We think counsel for appellant fails to properly distinguish between the two actions. Jalonick could not maintain the action against Hamill for the title, because [642]*642the question of title is one yet to be determined in another tribunal. But if the contract of lease was valid, in the first instance, as between Jalonick and Hamill, it always retained its validity, until Hamill had, by a surrender of possession under the lease, put an end to the contract between them.”
The question of whether or not the said S. W. Sawyer is qualified, under the law, to acquire the title to lands, 'in that portion of Oklahoma opened to settlement on April 22, 1889, is one exclusively for the land department and the trial court should have sustained plaintiff’s objection to the introduction of any evidence concerning same.
Finding no error in the record, the judgment of the district court is affirmed,. at the cost of the plaintiff in error.
Dale, C. J., having presided in the -court below, not sitting; ail the other Justices concurring