
    ORRIN KIPP v. E. HAGMAN and Another.
    June 14, 1898.
    Nos. 11,060—(147).
    Action to Test Tax Title — Allegation of Title in Defendant and Prayer for Affirmative Belief — Waiver of Proof of Vacancy.
    In an action under the statute to determine adverse claims under alleged tax titles, the defendants in their answers alleged title in themselves and demanded affirmative relief. Held, they thereby waived any proof under the allegation of the complaint that the land is vacant and unoccupied.
    Appeal by plaintiff as administrator of the estate of Edward Putnam, deceased, from a judgment of the district court for Chisago county, dismissing the action, entered in pursuance of the order of Crosby, J.
    Reversed.
    
      8. & O. Kipp, for appellant.
    P. E. Stolberg, for respondents.
   CANTY, J.

Plaintiff brought this action under G. S. 1894, § 5821, as amended by Laws 1897, c. 266, to test the validity of tax titles by and through which he alleges defendants claim some title and interest adverse to the plaintiff in the land in question. It is further alleged in the complaint that the land is vacant and unoccupied. The defendants in their answers set forth their claims of title under certain tax proceedings, and ask judgment adjudging that they are the owners of the land. On the trial plaintiff proved a chain of title from the United States to himself, and rested, without proving that the land was vacant and unoccupied when the action was commenced. Thereupon defendants moved to dismiss, the motion was granted, and from the judgment entered thereon plaintiff appeals.

It has often been held that where the defendant, in an ordinary statutory action to determine adverse claims, alleges title in himself, and demands affirmative relief against the plaintiff, it is not necessary for the plaintiff to prove the allegation of his complaint that the land is vacant and unoccupied, or that he is in possession, as the case may be. Mitchell v. McFarland, 47 Minn. 535, 50 N. W. 610; Burke v. Lacock, 41 Minn. 250, 42 N. W. 1016; Windom v. Schuppel, 39 Minn. 35, 38 N. W. 757; Hooper v. Henry, 31 Minn. 264, 17 N. W. 476. We see no reason why the same principle should not apply in an action to determine adverse claims under alleged tax titles. In answer to this, counsel for respondents states:

“Defendants waive nothing by pleading title in themselves and asking affirmative relief, as in this form of action they cannot be adjudged to be the owners of the land.”

We are clearly of the opinion that such a counterclaim is a proper one in this form of action. We are also of the opinion that, by pleading it, defendants waived proof, under the allegations in plaintiff’s complaint, that the land is vacant and unoccupied, and that, therefore, the court erred in dismissing the action when plaintiff rested.

Judgment reversed, and a new trial granted.  