Page:North Dakota Reports (vol. 3).pdf/147

 James B. Power vs. A. M. BowbLe.

Opinion filed January 19th, 1893.

Action to Determine Adverse Claims—Counterclaim.

In an action under § 5449, Comp. Laws, to determine adverse ‘‘estates and interests"’ in real estate, the defendant may by answer, in addition to a denial of plaintiff's title, allege ¥acts which show title in himself, and ask that such title be quieted and confirmed by the court. Such new matter, when properly pleaded, constitutes a counterclaim, within the meaning of subdivision 1,§ 4915, Comp. Laws. Such counterclaim constitutes a cause of action in favor of the defendant, and against the plaintiff, which is ‘connected with the subject of the action.”

Reply—When Deemed Waived.

To such counterclaim, if not demurred to, the plaintiff must respond by a reply, and, if none is served, the defendant may move for judgment. Comp. Laws, § § 4918, 4919. But where both parties at the trial treat the new matter as traversed and at issue, and evidence upon the same is put in without objection, and the court, without objection, proceeds to litigate and determine the subject matter of the counterclaim, it will be too late, after judgment, to to raise the point that no reply was served. In such case the reply is waived by conduct.

Estates and Interest—Not Synonymous with Liens.

In said statuorystatutory [sic] action, "estates and interests” in lands are not synonymous in meaning with “liens.” Mere “liens”? are not primarily within the purview of the statute; but where a defendant sets out new matter as a counterclaim, which embraces a ‘lien’? upon the land, and asks the court to pass upon the same, and such new matter is heard upon the merits, and is determined by the court, without objection, it will be too late, after judgment, for the defendant to raise the technical objection that “liens” cannot be litigated in such an action.

Assessment Roll—Sufficiency of Description.

The statute requires parcels of land listed in an assessment roll, which conconsists of parts of sections, to be particularly described. Sections 1544, 1582, Comp. Laws. Accordingly, held, that tracts of land in an assessment roll, consisting of parts of sections, described as follows, viz: Name of owner, 5 section 5 town 5 range followed by a statement of the number of acres, is insufficient, because the part of the section is not particularly described. The fact that such description may not mislead the owner is not alone enough to validate it.

Insufficient Descriptions.

Following the rule laid down in Powers v. Larabee, 49 N. W. Rep. 726, 2 N. D. 141, and Keith v. Hayden, 2 N. W. Rep. 495, 26 Minn. 212, held, that the combination of letters and figures given below, and all others of similar