
    David J. Hennessy vs. St. Paul, Minneapolis & Manitoba Railway Company.
    December 15, 1882.
    Ejectment for Undivided Interest — Complaint held Sufficient. — Action of ejectment for possession of an undivided interest in a tract of land. Held, that it was not necessary to allege in the complaint that the defendant had not, since its entry upon the premises, acquired the right to the possession by condemnation for the purposes of its road. This would be a matter of defence to be set up by answer. Neither wras it necessary to allege that the defendant was not the owner of the other undivided interest, or in possession under such owner. This would also be a matter of defence, even if the complaint did not allege facts which would amount to an ouster of a tenant in common by his co-tenant.
    Defendant appeals from an order of the district court for Ramsey county, Brill, J., presiding, overruling its demurrer to the complaint.
    
      R. B. Galusha and J. Kling, for appellant.
    
      II. J. Horn, for respondent.
   Mitchell, J.

This is an action of ejectment, and the question to be considered is the sufficiency of the complaint. The allegations of the complaint here material are that the plaintiff is, and was at the time of the wrongful entry by defendant complained of, the owner of the undivided two-thirds of a tract of land, and, in common with the owner of the other third, entitled to the possession of said land; that in the year 1880, defendant unlawfully and wrongfully, and ivithout any estate, right, title, or interest in said land, or any part thereof, entered upon plaintiff’s said land and excluded him from it, and took exclusive possession of it; that before the commencement of this action, plaintiff demanded possession of his land, but defendant continued in the wrongful and exclusive possession of it, and wrongfully and unlawfully detains it from him, and refuses to give him possession.

We fail to see why this is not a good pleading. Only two defects are suggested. One is that it does not allege that the defendant has not, since its entry in 1880, acquired the right to the possession, by condemnation of the premises for the purposes of its road. The answer to this is that if any such right has been acquired, it would be purely a matter of defence. Gray v. First Div. St. Paul & Pac. R. Co., 13 Minn. 289, (315.)

The second defect suggested is, in substance, that as plaintiff is the owner of only an undivided interest, he should have alleged that defendant was neither the owner of the other undivided interest, nor held under such owner. To this there are two sufficient answers: First, this also is a matter of defence. Sherin v. Larson, 28 Minn. 523. Second, even if it affirmatively appeared that defendant was the owner of the undivided third of the land, yet the complaint alleges facts amounting- to an ouster of plaintiff by defendant, and therefore the complaint would be good, even in an action by one tenant in common against his co-tenant.

Order affirmed.  