
    167 F. 473
    McGRATH et al. v. VALENTINE.
    No. 1,610.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 8, 1909.
    
      Shackleford & Lyons and R. F. Lewis, for plaintiffs in error.
    Malony & Cobb, for defendant in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

We find no error in the ruling of the court that the affirmative matter pleaded in the answer constituted no defense to the action as to the tracts in lots 1 and 3, particularly described in the complaint. In Miller v. Margene, 149 F. 694, 79 C.C.A. 382, in a similar case, this court held that, under the law and the regulations of the Secretary of the Interior, persons claiming the right to obtain legal title to lots in the town of Juneau were required to make application therefor to the trustee of the town site, that the trustee was clothed with authority to investigate and determine the rights of all persons making such applications, and that his action thereon has the same legal effect as that of the register and receiver in passing upon a claim of right to enter public land under the homestead or pre-emption laws. Said the court: “In the absence of fraud, accident, or mistake, his decision of all questions of fact arising in such a proceeding was final, except as the same might be reversed upon appeal to the Commissioner of the General Land Office and the Secretary of the Interior. This rule in relation to the effect of the decisions of the officers of the Land Department in disposing of public lands of the United States is well settled.”

In that case the bill alleged that the plaintiffs had no knowledge of the hearing, or any opportunity to learn thereof, or any opportunity to deny the false statements or any part thereof, or to prove the statements or any part thereof false, at any time or place. A demurrer had been interposed to the bill on the ground that the same failed to state facts sufficient to constitute a cause of action, in that there were no allegations of fact showing how, or the means whereby the plaintiffs were prevented from having knowledge of the hearing before the town-site trustee, and there litigating the right of possession of the lot sued for, nor was it shown that such want of knowledge or any want of opportunity to be heard before said town-site trustee was induced or caused by the defendant. The court held that it was incumbent on the plaintiffs to allege facts showing that without negligence on their part they were prevented from appearing before the trustee and submitting evidence to establish their right to enter the property.

It is contended that under the denials of the answer the court, on the motion for judgment on the pleadings, could not lawfully enter judgment against the plaintiffs in error for the rental value of the premises. The judgment was rendered for $1,128, a sum less than that which was demanded in the complaint. The answer contained a general denial of the paragraph in which the rental value was alleged. The trial court regarded this denial as an admission of any sum less than the sum alleged. In other words, he treated it as a negative pregnant. The earlier decisions in some of the states where the code system of pleading prevails have held a general denial of an allegation of value to be an admission of the value alleged, or, at least, of any value less than the value so alleged. Patterson v. Ely, 19 Cal. 28; Lynd v. Picket, 7 Minn. 184 (Gil. 128), 82 Am.Dec. 79; Moulton v. Thompson, 26 Minn. 120, 1 N.W. 836. But we think the better doctrine is expressed in 1 Enel, of Pleading & Practice, 796, where it is said: “A negative pregnant can only arise by the interposing of a special denial. A general denial puts in issue every allegation in the pleading to which it is a denial. It can never be construed as a negative pregnant.”

In German American Bank v. White, 38 Minn. 471, 38 N.W. 361, the former decisions of that state were overruled, and it was held that, where an action is brought to recover liquidated damages, the allegation of their amount is not traversable, and that a general denial puts in issue every allegation of the pleading which it denies, and can never be construed as a negative pregnant. That was held in a case in which the plaintiff sued for rents and profits of lands during the time they had been wrongfully withheld from him. In rejecting the doctrine of its former decisions, the court said: “It is unsound in principle. A negative pregnant is a negative that implies an affirmative, and from its very nature such a negative can never be found in a general denial, which is a denial in gross of all the allegations of the pleading to which it is interposed. A general denial has as wide a scope as the allegations of the pleading which it denies, and puts in issue every fact alleged in it. Bliss, Code Pleading, § 332; 2 Wait’s Pr. 419, 420, and cases cited. * * * In every other state, so far as we can ascertain, in which the code system of pleading prevails, a general denial ’is held a good traverse of every allegation of the pleading to which it is interposed.”

The plaintiffs in error contend that they were entitled to an opportunity to prove the allegations in the answer that McGrath and his grantors had been in the actual, open, notorious, and exclusive possession of the land in controversy continuously since 1882; citing Code Civ. Proc. pt. 4, § 1042 (Carter’s Code, p. 354), as follows: “The uninterrupted, adverse, notorious possession of real property under color and claim of title for seven years or more, shall be conclusively presumed to give title thereto except as against the United States.”

But the answer failed to allege that the possession so relied upon was adverse or under claim of title. It went no further than to say that the possession was actual, open, notorious, and exclusive, and that McGrath and his grantors had been the actual owners of said premises during all of said time. Such allegations fall short of showing the adverse possession which is made a defense by the Code. Tyee Con. Min. Co. v. Langstedt, 121 F. 709, 58 C.C.A. 129. While we are disposed to construe liberally the allegations and denials of the answer, and, indeed, such is the command of the Alaskan Code, we are not at liberty to disregard vital defects of pleading, especially in view of the fact that there was opportunity to amend in the court below when the defects were pointed out, as they must have been on-the motion for judgment on the pleadings. We must assume that the allegations of the answer were relied upon, in the form in which they were framed, as containing the pleader’s expression of all grounds of defense. It is to be observed, also, that the plaintiffs in error, in objecting to the judgment on the pleadings, made no objection on the ground that they had alleged adverse possession or were denied the opportunity to prove it.

It is contended that the plaintiff in error McGrath was entitled to the protection of his possession of the whole tract deeded to him by Erussand under the provisions of Act Cong. May 17, 1884, c. 53, § 8, 23 Stat. 26 (48 U.S.C.A. § 356 note), which provides that Indians or other persons in the District of Alaska — “shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them, but the terms under which such persons may acquire title to such lands are reserved for future legislation by Congress.”

In answer to this, it is sufficient to say that the terms under which any one in the possession of land included within the town site of Juneau might thereafter acquire title thereto were expressed in the act of Congress of March 3, 1891, above referred to, under which the land was patented to the town-site trustee in trúst for the occupants thereof.

The answer denied the title of the defendant in error except as thereinafter stated, and it not only admitted no title in him, to any portion of lot 2, but it expressly alleged title in McGrath as to a certain described portion thereof, in which is included the land in that lot which by the judgment was awarded. to the defendant in error. This was a distinct issue, as to which the plaintiffs in error were entitled to a trial by jury, and as to which it was error to enter a judgment for the defendant in error on the pleadings.

For the errors pointed out, the judgment must be reversed, and the cause remanded to the court below for trial.  