Zumwalt v. Madden

31 P. 400, 23 Or. 185, 1892 Ore. LEXIS 125

• Court: Oregon Supreme Court
• Decided: November 14, 1892
• Status: Published

Opinion

Per Curiam.

This is a suit in equity to determine an adverse claim to title under section 504, Hill’s Code. To maintain such a suit, the plaintiff must allege that he is in possession of the premises, and that the defendant claims an estate or interest therein adverse to him, and call upon the defendant to set it forth in his answer: Goldsmith v. Gilliland, 10 Saw. 610 (22 Fed. Rep. 865); Walton v. Perkins, 10 N. W. Rep. 424.

The complaint is in the usual form. The defendant demurred to it on the ground that it does not state facts sufficient to constitute a cause of suit. The demurrer having been overruled, he appealed, and his point of contention is, that in suits in equity the probative facts must be alleged. But this is a mistake; it is the ultimate facts and not the evidence that should be pleaded under .our code of procedure: Ely v. New Mexico R. R. Co. 129 U. S. 291.

The decree is affirmed, and remanded for such further proceedings as may be just and equitable.