Sec. 1121. A joint tenant out of possession may not have partition without joining a cause of action for

possession.

The rule on this subject is, that a joint tenant, or tenant in common, out of possession, cannot maintain an action for partition, against his cotenants, who hold adversely to him, without joining with the demand for partition a cause of action for possession of the land. The reason announced for this ruling is that it was manifestly clear that the parties to an action of this kind, to avoid multiplicity of suits, ought to have their possessory rights determined in one action.3

Sec. 1122. Actions against executors or administrators.

35

When there is a deficiency of assets in the hands of the executor or administrator, and when the decedent in his lifetime, has conveyed any real estate, or any rights or interests therein, with intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditors all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights or credits which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance.36

Sec. 1123. Limitations of actions to recover real estate sold by an executor or administrator.

No action for the recovery of any estate sold by an executor or administrator, under the provisions of chapter

35 Moorehead v. Robinson, 68 Kan. 534, 75 Pac. 503; Denton v. Fife, 65 Kan. 1; Chandler v. Richardson, 65 Kan. 152, 69 Pac. 168.

36 Snyder, 6,355; See, also, Section ject of conveyances creditors.

Wilson, 1699.

on the subin fraud of

eighty-six, article eight (Snyder), can be maintained by any heir or other person, claiming under decedent, unless it be commenced within three years next after the sale. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud or other grounds upon which the action is based."

Sec. 1124. Actions by or against executors for the recovery of real estate.

Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases and in the same courts in which the same might have been maintained by or against their respective testators and intestates.38

Sec. 1125. Duties of executor or administrator as to taking possession of real estate.

The executor or administrator must take into his possession all the estate of the decedent, real and personal, except the homestead and personal property not assets, and collect all debts due to the decedent or to the estate. For the purpose of bringing suits to quiet title or for partition of such estate, the possession of the executors or administrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purpose of administration, as provided in this chapter.39

Sec. 1126. The allegations of the petition in ejectment.

In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition, that he has a legal or equitable estate therein, and is entitled to the possession thereof, describing the same, as required by Section

37 Snyder, 5,343; Wilson, 1,687. 38 Snyder, 5,348; Wilson, 1,692.

39 Snyder, 5,347; Wilson, 1,691.

5667, Snyder's Compiled Laws, Wilson, 4331, and that the defendant unlawfully keeps him out of the possession. It shall not be necessary to state how the plaintiff's estate or ownership is derived.40

The title need not be deraigned with particularity.*

It was said that the language of this statute is too plain to need the support of authority to show that an equitable title or estate in land is a sufficient basis for an action in the nature of ejectment, but, if such were necessary, it can be found in abundance by consulting the decisions of the Supreme Court of the State from which the statute was taken. "Any kind of an estate in land, legal or equitable, is sufficient to enable the plaintiff to recover in an action in the nature of ejectment, under the provisions of the civil code, as against a party who has no interest in the property. The question of who shall recover in such an action depends entirely upon the question which party has the paramount right to the property in controversy. Under the code an equitable title to real estate may be sufficient to sustain an action to recover the possession.

41

An equitable title, if the paramount one to the land, is sufficient to maintain ejectment against the holder of the legal title, and proof of the equitable title, under an allegation of ownership of a legal title, is not a variance.12

40 Snyder, 6,122; Wilson, 4,788; Kansas, 5,082 (1901), identical; Nebraska, 1,638, identical; Ohio Gen. Code, Sec. 11,903, identical. The following are the provisions of Sec. 5,667, Snyder's Compiled Laws, mentioned in the foregoing paragraph: In any action for the recovery of real property, it shall be described with such convenient certainty as will enable an officer holding an execution to identify it.

*Shellenbarger v. Fewell, 124 Pac. 617 (Okla.).

41 Laughlin v. Farriss, 7 Okla. 1, 50 Pac. 254; Hanenkratt V. Hamill, 10 Okla. 1, 61 Pac. 1,050; Jennings v. Brown, 20 Okla. 294, 94 Pac. 557; Simpson v. Boring, 16 Kan. 248; Ry. v. McBratney, 12 Kan. 9; Duffey v. Rafferty, 15 Kan. 9; State v. Stringfellow, 2 Kan. 263; Ry. Co. v. Pracht, 1 Pac. (Kan. Sup.) 319.

42 Pope v. Nichols, 59 Pac. 257, 61 Kan. 230.

Under this code provision, a pleading is sufficient which alleges that the defendant unlawfully keeps plaintiff out of the possession, and an allegation that "defendant wrongfully keeps the plaintiff out of possession" does not make the petition demurrable, as the code does not prescribe an exact form.4

43

Again, it has been held, that any kind of an estate in land, legal or equitable, is sufficient to enable the plaintiff to recover in an action in the nature of an ejectment, under this code provision, as against a party who has no interest in the property.**

Where the petition and answer, in the action in ejectment, set forth such facts and make such denials only as required by Sections 619 and 620 of the code of civil procedure of the State of Kansas, either party under such pleading may prove any fact which may tend to strengthen his own title or defeat that of his adversary, to the same extent as if the facts were fully pleaded, including such as may tend to prove that the rights of either party have been barred by any statute of limitations.45

As between two parties, neither of whom has a right to the possession of real estate, of which one is in possession, the other cannot oust him therefrom.1

Sec. 1127. The allegation of the answer in ejectment-Possession admitted, when.

It shall be sufficient in such action, if the defendant, in his answer, deny, generally, the title alleged in the petition, or that he withholds the possession, as the case may be; but if he deny the title of the plaintiff, possession by the defendant, shall be taken as admitted. Where he does not

43 Rhea v. Williams (Kan.), 103 Pac. 119.

44 Simpson v. Boring, 16 Kan.

248.

45 Taylor v. Danley (Kan.), 112 Pac. 594.

46 Robertson v. Howard (Kan.), 112 Pac. 162.

defend for the whole premises, the answer must describe the particular part of which defense is made."7

A defendant, in answer to a petition in ejectment, may show by his pleading, that he is the equitable owner of the property, and entitled to affirmative relief.58

Where, in an action of ejectment for a town lot by one who relies on a deed from M., the defendant answers, alleging a prior purchase of the lot from the agents of M. by verbal contract, on which he paid part of the purchase money at the time, and went into immediate possession of the premises, and alleges that subsequently, and within the period fixed for the delivery of the deed and payment of the balance of the purchase money, he tendered such balance, and also alleges that he has made lasting and valuable improvements on the lot, held, that such answer states a defense, and it is not error to overrule a demurrer thereto which avers that such answer does not state facts sufficient to constitute a defense.49

Sec. 1128. The allegations of the answer of a cotenant.

In an action by a tenant in common of real property, against a cotenant, the plaintiff must, in addition to what is required in Section 6122, Snyder's Compiled Laws, and Section 4788, Wilson's Statutes, 1903, state, in his petition, that the defendant either denied the plaintiff's right, or did some act amounting to such denial.*

47 Snyder, 6,123; Wilson, 4,789; Kansas, 5,083 (1901), identical; Nebraska, 1,639 (1907), identical.

48 Sutton v. Sutton, 83 N. W. (Neb.) 200.

49 Chandler v. Neil, 46 Kan. 67, 26 Pac. 470.

* Snyder, 6,124; Wilson, 4,790; Kansas, 5,084 (1901), identical;

Nebraska, 1,640 (1907), identical; see, also, Kirk v. Bowling, 20 N. W. (Neb.) 928; Maltis v. Boggs, 28 N. W. (Neb.) 325; Delashmet v. Parrant, 39 Kan. 548, 18 Pac. 712; Jackson v. Rorke, 98 N. W. (Neb.) 1,068; Names v. Names, 67 N. W. (Neb.) 751; Johnson v. Hardy, 61 N. W. (Neb.) 624.