
    Frum v. Weaver et ux.
    
    1. A complaint alleging that plaintiff is the owner of certain land, and is entitled to the immediate possession thereof, and that defendants are in possession claiming some right, title, or interest therein, states a cause of action under Comp. Laws, § 5449, to determine the adverse claim or interest, notwithstanding further allegations as to the nature of defendants’ title, and the defects therein, which are surplusage, and do not change the character of the action.
    2. Comp. Laws, § 3303, which provides that “every grant of real property, other than one made by the state, or under a judicial sale, is void, if at the time of the delivery thereof such real property is in the actual possession of a person claiming under a title adverse to that of the grantor,” cannot be invoked in support of a demurrer to a complaint to recover land, which alleges that plaintiff has been the owner of the property since a certain date, because the complaint also shows that defendants have been in possession since prior to such date, as the demurrer admits the allegation of ownership, which implies a title lawfully acquired, unless the contrary appears from the pleading.
    (Opinion filed August 29, 1900.)
    Appeal from circuit court, Hyde county. Hon. Loring E. Gaffy, Judge.
    Action by Solomon B. Frum against Walter B. Weaver and Catherine Weaver. From an order overruling a demurrer to the complaint, defendants appeal.
    Affirmed.
    
      John L. Pyle, for appellants.
    
      L. JE. Whitcher, for respondent.
   Haney, J.

This appeal is from an order overruling defendants’ demurrer to the complaint upon the ground that it does not state a cause of action. The first paragraph of the complaint is as follows: “That plaintiff is, and ever since the 6th day of January, 1898, has been, the legal holder and owner of the southeast quarter of section thirty-one, in township one hundred and thirteen north, of range seventy-two west of the 5th P. M., in Hyde county, South Dakota, in fee simple, and is entitled to the immediate possession, but the defendants have been during the time since said January 6th holding and occupying said premises as a homestead, and claim some right, title, and interest therein by virtue of a certain so-called ‘treasurer’s sale deed, ’ executed by C. P. Swanson, as county treasurer, bearing date March 25, 1897, without plaintiff’s consent, and against plaintiff’s will.” The complaint also contains an alleged tender of the taxes paid by defendants, and certain’ defects in his tax title. The paragraph above quoted constitutes in itself a cause of action. Male v. Brown, 11 S. D. 340, 77 N. W. 585. The allegations of the complaint relating to defects in defendants’ tax title are not inconsistent with plaintiff’s claim of ownership. They are not necessary to his cause of action, and may be treated as surplusage. Trotter v. Association, 9 S. D. 596, 70 N. W. 843. Plaintiff having alleged that he is the owner of the premises, and that defendants claim some right, title, and interest therein, it devolves upon defendants to allege and prove the facts upon which their claim is based.

Defendants contend that the plaintiff cannot 'maintain this action, because the complaint shows that they were in possession under a tax deed, adverse to his grantors, at the time his title was obtained. The law relied upon reads as follows: “Every grant of real property, other than one made by the state, or under a judicial sale, is void if at the time of the delivery thereof such real property is in the actual possession of a person claiming under a title adverse to that of, the grantor.” Comp. Laws, § 3303. This contention is untenable. The complaint does not disclose the manner in which plaintiff’s title was obtained. Defendants’ demurrer admits that plaintiff is and has been the owner since January 6, 1898. Ownership implies acquisition of title in a lawful manner. In the absence of any allegations to the contrary, it must be presumed that plaintiff’s title was acquired in one of the methods sanctioned by the statute. Counsel for respondent criticises the statute with much severity, calling attention to the fact that ■ it was recently repealed. Laws 1899, c. 109. With the "wisdom or policy of such legislation courts are not concerned. If, in fact, plaintiff’s title depends upon a grant made in contravention of the statute then in force, he cannot maintain this action; but, as such fact does not appear upon the face of the complaint, defendants’ demurrer was properly overruled. The order appealed from is affirmed.  