Parley's Park S. M. Co. v. Kerr

This is an action under section 254 of the practice act. The complaint is in the most general terms, and simply avers that the respondent claims some interest or estate in the premises in controversy, or some part thereof, adverse to the appellants, which interest or claim, it is averred on information and belief, is without any legal or equitable foundation, and void, and that it is a cloud upon its title, etc., the usual formal allegations. The respondent pleads, and the agreed facts show, a patent to him from the United States, including the ground in controversy. In view of the facts set out in the agreed statement, the most that can be said as against this patent is that it is voidable, and not void. Passing by the question whether an action can be maintained to set aside a voidable patent granted by the United States without making it a party, this complaint is insufficient to authorize the admission of evidence attacking the validity of the patent, or to sustain a judgment or decree of the court annulling it. Such a decree would not be in accordance with any specific relief demanded by the appellant, and could not be included in the general clause for relief, under section 149 of the practice act, as it would not be consistent with the case made by the complaint or embraced in the issues.

Counsel for the appellant say in their brief that “the object of the suit is to have an adverse claim annulled. ” The adverse claim is shown to be based upon a patent title from the gov-*246eminent. No objection is made that the patent is void upon its face, or otherwise informal. The government certainly had the title, the patent is not unauthorized or prohibited by any law, and is between competent parties, and is voidable only in equity for some mistake, fraud, or misrepresentation practiced upon the- government: Kahn v. Old Telegraph M. Co., 2 Utah, 174 Granting that this may be done without making’ the party defrauded, the government, a party to the action, the acts of fraud, misrepresentation, and the like must be specified in the complaint, or it will not state facts sufficient to constitute a cause of action: Semple v. Hagar, 27 Cal. 163. As the other members of the court are not prepared to pass upon the remaining point raised on the appeal, and as the one discussed is decisive of the case, the judgment of the lower court dismissing the action is affirmed.