cover the land. It was said by the court in the action, that, by the common law, advantage of a breach of a condition subsequent, working a forfeiture of an estate, could only be taken by formal entry, on the principle that it required as solemn an act to defeat as to create an estate. But in this state there is no such thing as livery of seizin, in the common law sense. Estates are created by written instruments. Delivery of possession of lands is, of course, a circumstance of some weight in determining questions of title. Under our statute, a party having either a legal or equitable title may maintain an action for the recovery of real property. formal entry is necessary here as a condition precedent to the bringing of an action of ejectment. Recent authorities are to effect that an ordinary action of ejectment answers all purposes of a common law entry. The condition on which the grant was made being lawful, and one which the parties had a right to agree upon, must be enforced on the demand of the plaintiffs.23 Sec. 1115. Ejectment will not lie to recover under oil and gas lease where lands undeveloped. Oil and gas, while in the earth, unlike solid minerals, are not the subject of ownership distinct from the soil, and the grant of the oil and gas, therefore, is a grant, not of the oil that is in the ground, but of such a part as the grantee may find, and passing nothing that can be the subject of an ejectment or other real action.24 23 Ritchie v. Kansas, 55 Kan. 36, 39 Pac. 718; Clarke v. Town, 81 Mo. 503; Jeffery v. Graham, 61 Tex. 481; Richter v. Richter, 111 Ind. 456; 12 N. E. 360; Heywood v. Ass'n, 11 Pac. (Cal.) 246; Railway v. Hood, 66 Ind. 580; Pepin v. Prindle, 61 Wis. 301, 21 N. W. 254; Horner v. 24 Kalochny V. Galbreath, 26 Okla. 772, 110 Pac. 902. Sec. 1116. Plaintiff must recover on the strength of his own title. The plaintiff, in his action to recover possession of rea! estate, must recover on the strength of his own title, or right to the property; he cannot rely upon the weakness or invalidity of the defendant's right or title.25 Upon this subject it has been said that the plaintiff in ejectment is not required to have the legal title, or all the title, or title paramount to the title of all others in order to enable him to recover. All that is necessary in order to enable him to recover is that he shall have some kind of estate in the property in controversy, legal or equitable, and that his title to the property shall be paramount to that of the defendant.20 A defendant in an ejectment action cannot plead an outstanding superior title in a third person to defeat the recovery of the plaintiff.27 It has been held in an action by ejectment when the plaintiff's testimony shows the defendant in possession of the 25 Hearst v. Sawyer, 2 Okla. 470, 37 Pac. 817; Myers v. Mathias, 2 Ind. Ter. 3, 46 S. W. 178; Mitchel v. Lines, 36 Kan. 378; O'Brien v. Bugsbee, 46 Kan. 1; Simpson v. Boring, 16 Kan. 248; State V. Stringfellow, 2 Kan. 259; Omaha v. Rieter, 66 N. W. 650; Chicago v. Schalkaf, 74 N. W. (Neb.) 826; Comstock v. Kerwin, 77 N. W. (Neb.) 387; Buck v. Gage, 43 N. W. (Neb.) 110; Abbot v. Coats, 86 N. W. (Neb.) 1058. 26 Atchison v. Rockwood, 25 Kan. 210; Simpson v. Boring, 16 Kan. 248; Stout v. Hyatt, 13 Kan. 232; O'Brien v. Wetherall, 14 Kan. 622. 27 Thomas Rauer, 62 Kan. 568, 64 Pac. 80. The plaintiff in V. ejectment must recover, if he recovers at all, on the strength of his own title. In this State the plaintiff is not required to have all the title, or title paramount to the title of all others, in order to enable him to recover. All that is necessary in order to enable him to recover is that he shall have some kind of estate in the property in controversy,' legal or equitable; and that his title to the property shall be paramount to that of the defendant. Note to Stout v. Hyatt, 13 Kan. 176; citing Atchison v. Rockwood, 25 Kan. 302; Atchison v. Pracht, 30 Kan. 71, 1 Pac. 319. disputed land under a claim of ownership, the plaintiff must then recover on the superiority of his title, and, if he relies on a record title, he must show a regular chain of title from the Government or some grantor in possession, or from the common source from which each of the litigants claim.28 Under an identical statute of the State of Nebraska, the Supreme Court of that State decided that a devisee may prosecute ejectment for the lands devised to him during the pendency of probate proceedings.29 Where a plaintiff in an action of ejectment establishes an interest or title to land paramount of that of the defendant, the latter cannot avail himself of an outstanding title in a third party, although it may be superior to that of the plaintiff.30 Sec. 1117. Possessory title will prevail, when. Possession of real estate, with a claim of ownership, is not only evidence of title, but is title itself in a low degree, and will descend to heirs; prior possession with such a claim will, even in ejectment, prevail over a subsequent possession acquired by mere entry without any lawful right.31 28 Runcle v. Welty, 111 N. W. 463. 29 Beer v. Plant, 96 N. W. (Neb.) 348. 30 McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822. 31 Mooney v. Olsen, 21 Kan. 496. Where F, who was in possession of land under color of title claiming to be the owner, died, and her rights in the land descended to the heir, O, and M subsequently took possession of the land without any lawful right, and claimed to own the same, held, that between O and M, in an action in which O is required to show ownership in herself as against 31 M that M cannot show, for the purpose of defeating O's title, that F's title was, in fact, defective at the time of her death, or that, in fact, there was a paramount outstanding title in a third person. Mooney v. Olsen, 21 Kan. 496. In ejectment, proof of possession under claim of title for over fifteen years is sufficient to sustain a finding of title as against a party under no disability, and claiming title only by virtue of a recent and insufficient tax deed. Hollenback v. Ess, 31 Kan. 871, 1 Pac. 275; Utley v. Fee, 33 Kan. 690, 7 Pac. 555. Sec. 1118. The action may be equitable as well as legal. Although the facts in an action for the recovery of real property under the civil code, are not usually, and need not necessarily, be set out in the pleadings in detail, nor with any degree of particularity, still every party under such pleadings may prove whatever would strengthen his own title, or defeat his own title, in the same manner and to the same extent that he could do, if the facts were set out with all the minuteness and substantial fullness of detail, with which they are in equitable actions.3 32 Sec. 1119. The action to determine adverse interests in real estate The action by one not in possession. It is provided by statute that an action may be brought by anyone in possession by himself or tenant, of real property, against any person who claims an estate or interest therein adverse to him for the purpose of determining such adverse estate or interest, and such action may be joined with an action to recover possession of such real property by any person not in possession." 33 Sec. 1120. Ejectment-Rents and profits and partition in one action. The Supreme Court of Kansas, early in its history, set forth the following propositions of law on this subject: "The following causes of action may be united in the same action, to-wit: A cause of action for the recovery of real property; a cause of action for the value of the rents and profits of such real property; and a cause of action for the partition of such real property; and where said above mentioned causes of action are all united in one petition, it is not necessary that the plaintiff should allege in his peti 32 Stout v. Hyatt, 13 Kan. 176; Atchison v. Pracht, 30 Kan. 71, 1 Pac. 323; Simpson v. Boring, 16 Kan. 248; Atchison v. Rockwood, 25 Kan. 302. 33 Act approved January 25, 1911. tion that he is in possession of such real property, in order to maintain his cause of action for partition. On the contrary, he may allege that he is not in possession, and that the property is held adversely to him by the defendant, provided, he also alleges that he is entitled to the immediate possession of the property."34 34 Scarborough v. Smith, 18 Kan. 400; see, also, Black v. Drake, 28 Kan. 484; Scantlin v. Allison, 32 Kan. 379, 1 Pac. 618. Several complaints are made of rulings relating to the pleadings. None of these is found to be well taken, and only one is thought to require special - mention. It is claimed that, because ejectment is a local action, the court of the county to which the change of venue was taken had no jurisdiction to permit the petition to be so amended as to make it one for the possession as well as for the partition of the property. Fields v. Maloney, 78 Mo. 172, supports this contention. This court, however, has already held in Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096, 93 Am. St. Rep. 276, that "a court to which a cause is properly removed by change of venue acquires jurisdiction of the cause and subjectmatter coextensive with that of the court from which the venue was removed, and may inquire into anything connected with the subjectmatter of the action, and render any judgment which might have been rendered by the court in which the case originated." Here the matter pertinent to ejectment was incorporated in the petition by amendment expressly in order that the statement of a cause of action for partition might be complete, and the case is therefore fully within the rule quoted. Young v. McWilliams, 75 Kan. 243, 89 Pac. 12. Plaintiff might have asked an accounting and for a partition, and at the same time for the quieting of the title to real estate; the defendant might avail himself of the same privilege. In Ilazen v. Webb, 65 Kan. 38, 68 Pac. 1096, the power of the court in partition proceedings to make all orders and findings necessary to protect the interests and rights of all of the parties, is quite fully discussed. Plaintiff may ask and obtain possession of the real estate, damages for the rents and use of the same, and injunction from committing irreparable damages to be done to the real estate by an insolvent defendant. Raymond v. Railway, 57 O. S. 282. The cole allows an action to recover real property, with or without damages for the withholding thereof, the rents and profits of the same, and the partition thereof, to be joined in one action. Ohio Gen. Code, Sec. 11,306. But causes of action so united, must not require different places of trial, and except as otherwise provided, must affect all the parties to the action. Ohio Gen. Code, Sec. 11,307. |