Kitteringham v. Blair Town Lot & Land Co.

I. This is an action to recover real estate, based alone upon a right of possession, and is an ordinary proceeding or action at law. As the plaintiff is not the owner of the legal title, such an action cannot be maintained. Page v. Cole, 6 Iowa, 153; Pendergast v. Burlington & M. R. R’y Co., 53 Iowa, 326.

II. If the foregoing proposition be conceded to be true, counsel for the appellant insists that a demurrer is not the proper remedy, but that the defendant should have moved the court to transfer the cause to the equity docket, and that it should have been tried as such; and in support of this proposition Conyngham v. Smith, 16 Iowa, 471, and Ashlock *283v. Sherman, 56 Iowa, 311, are cited. Conceding this proposition to be correct, the question is whether, under the facts stated, the plaintiff is entitled to equitable relief. No such relief is asked, and, conceding, all the facts stated-in the petition to be true, we are not prepared to say that the plaintiff has an equitable interest in the land; but, if he has, he does not ask that it be established.

Affirmed.