
    136 F. 74
    BROSNAN v. WHITE.
    No. 1,081.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 6, 1905.
    
      Volney T. Hoggatt, James E. Fenton, and W. T. Hume, for plaintiff in error.
    John A. Carson, for defendant in error.
    Before GILBERT, ROSS,, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The question here presented is whether the District Court erred in entering judgment for the defendant on the pleadings. The complaint states a good cause of action in ejectment. It alleges that the plaintiff owns and is entitled to the possession of an undivided one-half of the premises in controversy. The plaintiff was not required to further state the nature of her estate. Carter’s Civ. Code Alaska, § 303. She proceeded, however, to allege that the nature of her estate was prior possession, and that in March, 1-898, she and William Spencer went upon the premises, which were then unoccupied, and erected a building thereon. The defendant answered, denying all the allegations of the complaint, and then, instead of complying with section 304 of Carter’s Civil Code of Alaska by setting forth the nature of his estate, he proceeded to set forth the facts on which his claim of éstate was based. He alleged: First, that on March 6, 1898, the premises were unoccupied and unclaimed, and were on that date entered and appropriated by S. W. Gray; second, that in March, 1898, Gray erected a house on the premises, and occupied the same; third, that on July 7, 1898, Gray conveyed the lot to William Spencer, and that the latter went into possession; fourth, that on November 24, 1900, Spencer conveyed to Roberts; fifth, that on November 30, 1900, Roberts conveyed to the defendant; sixth, that the defendant had no notice of the plaintiff’s claim; and, seventh, that the defendant has made the. improvements, amounting to $6,000. The reply admits the first, second, and third of these paragraphs of the answer. It denies the fourth, fifth, arid sixth. It admits that $6,000 were expended in improvements, but denies that it was done without notice of the plaintiff’s interest. It then proceeds to allege affirmatively that on July 17, 1898, William Spencer conveyed an undivided one-half interest in the premises to the plaintiff, who was then in possession with him as tenant -in common, and that from that time the plaintiff continued to occupy said premises until ousted by the defendant as alleged in the complaint. But for the allegation of the plaintiff’s complaint as to the nature of her estate in the premises, there could be no question but that the pleadings otherwise present issues for trial and determination. The complaint, answer, and reply show that both the plaintiff and the defendant claim title through William Spencer. Claiming as they do from a common source, it was unnecessary for either party to deraign title from another source, or to pursue the chain of title further back than to their common grantor. All this would be without question, were it not for the unnecessary averment of the complaint that the nature of the plaintiff’s estate is that of prior possession, and that she and Spencer entered upon the premises in March, 1898. The question here is not what evidence the plaintiff might have been permitted to introduce, or might have been precluded from introducing, in proof of her title in view of the pleadings, but whether or not an issue was presented for trial before the court and jury. If material issues were presented by the pleadings, although they may have been improperly pleaded, the court was not authorized to render a judgment upon the merits, and adjudicate the title to be in one or the other of the parties. The admission in the reply that Gray went upon the premises and appropriated the same in March, 1898, and that he sold the same to Spencer in July, 1898, may not,-we think, be necessarily inconsistent with the statement that the plaintiff and Spencer were joint entrymen with Gray and another, as made by the plaintiff’s counsel in opening the case before the jury. But whatever may be the force or effect of the apparent departure from the plaintiff’s case, as stated in her complaint, by the admissions of her reply, a departure which may have rendered the pleadings obnoxious to a motion or demurrer from the opposing party, we do not think it justified the action of the trial court in rendering a judgment on the merits, adjudging the title to be in the defendant, and.barring the further right of action by the plaintiff. But it is said that the court was justified in regarding the plaintiff’s denials of paragraphs 4 and 5 of the answer, made, as they were in the reply, upon information and belief, as trivial, and as raising no issue upon those averments. It must be admitted that the pleadings are faulty They are defective on the part of both the plaintiff and the defendant. The provisions of the Alaska Code in regard to pleadings in ejectment are adopted from the Oregon laws. Under those laws it has been held that the particularity required in setting forth the nature of the estate or right of the defendant is complied with if he allege that he is the sole or part owner in fee simple, or upon condition, or for life, or for years, as the case may be (Witherell v. Wiberg, 4 Sawy. 232, Fed.Cas.No.17,917), and a detailed statement of facts which might be evidence in support of title in the defendant is not a proper plea of such title, and will, on motion, be struck out as redundant (Hall v. Austin, 1 Deady, 104, Fed.Cas.No.5,925; Fitch v. Cornell, 1 Sawy. 156, Fed.Cas.No.4,834; Moore v. Frazer, 15 Or. 635, 638, 16 P. 869). It may be doubted whether the plaintiff was required to file a reply to the answer. Generally speaking, the legal effect of the affirmative allegations of an answer alleging title in the defendant is mere denial of the averments of the complaint, and they are not to be considered as new matter, to be taken as true unless denied by a reply. But the plaintiff replied, denying on information and belief that the defendant is the owner in fee simple and in the possession of said premises. While such a denial in a pleading might be subject to objection as to its form, it certainly is not to be disregarded when the defendant accepts it as sufficient and goes to trial upon the issues so raised. The complaint distinctly alleged 'that the plaintiff was the owner and entitled to the immediate possession of the premises. The defendant denied this, and set up title in himself. The reply did not, admit this to be true, nor did it admit that the plaintiff was not the owner and entitled to possession as alleged in the complaint. The pleadings would have sustained a judgment for the plaintiff if the jury had returned a verdict in her favor, and it was error to enter judgment on them without a trial.

The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.  