1

he sells them without authority, and without notice, it is an unlawful conversion, and a demand before action need not be made nor averred in the complaint; 1 though it would be otherwise if the broker had only pledged the stock in good faith, for the amount due him. And where the pledgee parts with the pledge to a bona fide purchaser without notice of any right or claim of the pledgor, the latter cannot recover against such purchaser without averring a tender to him of the aimount due on the pledge. As a general rule, a tender

5

of the amount due must be averred in an action to redeem a pledge; but in the case of a pledge given to secure a running account, it is sufficient if the plaintiff offers to account with the pledgee, and to pay whatever is found due on such accounting. Where the complaint alleged a fraudulent hypothecation of the plaintiff's securities to the defendants, it was held that the latter might show, under a general denial, that they were bona fide holders for value. While the pledgee remains in possession of the pledge, the Statute of Limitations will not begin to run against the pledgor until tender of the debt for which the pledge was given, and a refusal by the pledgee to restore the pledge upon demand by the pledgor; and mere delay on the part of the pledgor to claim a redemption of the pledge for a period shorter than the time prescribed by the statute, as a bar to an action on the debt for which the pledge was held, will not suffice to raise a presumption against the right of the pledgor to redeem.8

1 Read v. Lambert, 10 Abb. Pr. N. S. 428. And see McLain v. Huffman, 30 Ark. 428; Ross v. Clark, 27 Mo. 549.

2 Read v. Lambert, 10 Abb. Pr. N. S. 428. Compare Hopper v. Smith, 63 How. Pr. 34, 37.

3 Talty v. Freedman's Sav. etc. Co. 93 U. S. 321.

4 Beatty v. Sylvester, 3 Nev. 228.

5 Beatty v. Sylvester, 3 Nev. 228. And see Stupp v. Phelps, 7 Dana, 296.

6 Hennequin v. Butterfield, 11 Jones & S. 411.

7 Whelan v. Kinsley, 23 Ohio St. 131.

8 Whelan v. Kinsley, 26 Ohio St. 131.

? 184. Possession of land-Complaint.—The former action of ejectment is known under the Code system of pleading as an action to recover the possession of land or real property. The plaintiff in such action is not limited to any particular form of complaint, but the form may be adapted to the facts desired to be put in issue.2 Generally speaking, it is enough for the plaintiff to set forth in such action what estate he claims in the land, and to allege that he was in possession on some day after his title accrued, and that the defendant, having afterwards entered into the possession, unlawfully withholds such possession from the plaintiff. He need not state in detail the facts constituting the estate or interest claimed in the land, it being sufficient to state that he has the estate. He may allege that he is seized of the premises, or of some estate therein, in fee, for life, or for years, or he may aver a former possession and ouster.5 But if he attempts to set forth in his complaint a specific deraignment of his title, he must aver every fact that he could be required to prove in order to recover. The complaint should not state the evidence, but only the ultimate facts constituting the cause of action. A complaint which does not state the nature or extent of the interest which the plaintiff claims therein is held not to be an objection which can be reached by demurrer, though it seems that a motion to make more specific will lie. It is not necessary to use the very expressions of the statute, that the plaintiff has "a legal interest therein," but any other language of equivalent import may be employed." But the complaint is insufficient on demurrer, for the want of sufficient facts, if it fails to show that the defendant

11

unlawfully keeps the plaintiff out of possession.10 It need not, however, use the exact words of the statute; it will be sufficient if words of similar import are used, or the averments of the complaint be such as to show the plaintiff's right to such possession, and the defendant's unlawful detention.12 A complaint otherwise sufficient is not vitiated by an allegation that the entry was made "willfully, fraudulently, maliciously, and forcibly.13 The complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner.1 The description must be sufficient to enable the sheriff to identify the property, so as to know how to execute the order of the court.15 But a description is sufficient if, by the aid of a competent surveyor and persons knowing the location of monuments mentioned as points in the boundaries, the lands can be found.16 So if the land of which, in part, the defendant was in possession was definitely described, but there was indefiniteness as to that part, this is not a ground of demurrer, and the remedy, if any, is by motion to make more definite and certain. And where the complaint fails to describe the premises, the court may permit an amendment during the trial.18 Damages, if sought to be recovered in ejectment, must be alleged.19 But a general averment of and prayer for damages in a specified sum, for the unlawful withholding of the premises, are sufficient to support a judgment for damages, at least, in the absence of a special demurrer or objection to the evidence on the subject; 20 and a finding as to the value of the use and occupation of the premises, no attack being made upon it in the court below, is conclusive as to the amount of the damages.21 A complaint in an action by a tenant in common or

22

joint tenant, to recover the possession of land held by an alleged co-tenant, which does not define or state the specific interest of the several co-tenants, is defective; and where the complaint, verdict, and judgment all fail to define the extent of the plaintiff's interest, and his ownership in the disputed premises, the judgment will be set aside.23 In some States, the right to maintain ejectment for dower before it is assigned is given by statute; and a complaint is sufficient which alleges that a person named was at his death, and had been for many years, the plaintiff's husband; that he died at a date named; that he was then the owner of the premises described; that she was entitled to one undivided third part thereof for life as dower; and that the defendant was in possession and withheld the same from her.25 It is not necessary that the complaint, in addition to the allegation that the defendant wrongfully withholds the possession, shall allege that he denies the plaintiff's right.26 A cause of action for the recovery of lands, with damages for withholding them, may be united in the same complaint with one for the rents and profits, or mesne profits, of the same lands." But it is held that if a claim for rents, etc., is set up in the action for the recovery of the land, it is a bar to another and separate suit for rents,28 Causes of action for the recovery of land, for the value of the rents and profits of the same land, and for the partition thereof may be united in the same action.29 So the complaint in ejectment may be for two separate parcels of land, but the two causes of action must be separately stated, must affect all the parties to the action, and not require different places of trial.30 But trespass, ejectment, and trespass quare clausum fregit cannot be joined in an action.31

1 See N. Y. Code Civ. Proc. 3343, subd. 20.

2 Caperton v. Schmidt, 26 Cal. 479. And see Bucher v. Carroll, 19 Hun, 618.

3 Warner v. Nelligar, 12 How. Pr. 402; Ensign v. Sherman, 14 How. Pr. 439; Rank v. Levinus, 5 Civ. Proc. R. 368; Merrill v. Dearing, 22 Minn. 376; Wells v. Masterson, 6 Minn, 566; Payne v. Treadwell, 16 Cal. 220; Marshall v. Shafter, 32 Cal. 176; Salmon v. Symonds, 24 Cal. 266; Keller v. Ruiz de Ocana, 48 Cal. 638; Osborne v. United States, Sup. Ct. N. M. 5 West C. Rep. 243.

4 Austin v. Schluyter, 7 Hun, 275; Kan. Pac. Railw. Co. v. McBratney, 12 Kan. 9. And see Larco v. Casaneuava, 30 Cal. 560; Pease v. Hannah, 3 Oreg. 301; Murphy v. Loomis, 26 Hun, 659, 661. In an action of ejectment for the recovery of real estate, no prior demand for the surrender of possession is necessary, and none need be alleged in the complaint, unless it be apparent from its other allegations that the relation of landlord and tenant exists, or has existed, between the plaintiff and defendant in regard to such real estate: McCaslin v. State, 99 Ind. 428.

5 Caperton v. Schmidt, 26 Cal. 479; Payne v. Treadwell, 16 Cal. 220; McCauley v. Gilmer, 2 Mont. 202; Norris v. Russell, 5 Cal. 249. Under averment of ownership in fee and right to possession of premises at the time of suit brought, a party can prove any facts which would entitle him to possession at such time: Sullivan v. Dunphy, 4 Mont. 499; Gillespie v. Jones, 47 Cal. 259.

6 Castro v. Richardson, 18 Cal. 478.

7 Depuy v. Williams, 26 Cal. 309.

8 Schenck v. Kelley, 88 Ind. 444. And see Burt v. Bowles, 69 Ind. 1; Steeple v. Downing, 60 Ind. 478.

9 Dunn v. Remington, 9 Neb. 82.

10 Levi v. Engle, 91 Ind. 330; Second Nat. Bank v. Corey, 94 Ind. 457. And see Scori v. Stephens, 62 Ind. 441; Jeffersonville etc. R. R. Co. v. Oyler, 60 Ind. 383.

11 Swaynie v. Vess, 91 Ind. 584.

12 Vance v. Schroyer, 82 Ind. 114; Lovely v. Speisshoffer, 85 Ind. 454; Smith. Kyler, 74 Ind. 575; Swaynie v. Vess, 91 Ind. 584; Van Voorhis v. Kelly, 31 Hun, 293, 296.

13 Hildreth v. White, Sup. Ct. Cal. 6 West C. Rep. 130.

14 NY. Code Civ. Proc. 1511. And see St. John v. Northrup, 23 Barb. 25; City of Crawfordsville v. Boots, 76 Ind. 32; Harrison etc. Turnp. Co. v. Roberts, 33 Ind. 246.

15 Cunningham v. McCollum, 98 Ind. 38; Franco v. Allman, 77 Ind. 417; Dale v. Insurance Co. 83 Ind. 473; Lewis v. Owen, 64 Ind. 446. 16 Brown v. Anderson, 90 Ind. 93.

17 Rank v. Levinus, 5 N. Y. Civ. Proc. R. 368.

18 Olendorf v. Cook, 1 Lans. 37; Russell v. Conn, 20 N. Y. 81. The complaint need not state the residence of either of the parties. The statute provides for the trial in certain counties, and the situation of the premises, not the residence of the parties, determines the county: Doll v. Feller, 16 Cal. 432.

19 McKinlay v. Tuttle, 42 Cal. 570.

20 Dimick v. Campbell, 31 Cal. 240; Martin v. Durand, 63 Cal. 39. And see Dunn v. Remington, 9 Neb. 82.

21 Martin v. Durand, 63 Cal. 39; Miller v. Myers, 46 Cal. 535. A claim for damages for withholding possession does not include the rents and profits, the latter being a separate and distinct cause of action: Livingston v. Tanner, 12 Barb. 481; Larned v. Hudson, 57 N. Y. 151.