On Rehearing. A rehearing on the application of the appellants was granted. We have further considered the case. In our opinion heretofore filed we held the complaint was defective because it was not sufficiently alleged that the asserted claim or claims of the defendants were hostile and adverse to the alleged title of the plaintiff, but that the complaint *Page 50 in such particular was aided by the answer and counterclaim of the defendants in which it was alleged that they "claimed" and acquired title to the premises in question by adverse possession and for many years since 1911 "possessed the premises exclusively, adversely and hostile to all right, title and interest of the plaintiffs." The rule as stated by us and as shown by the authorities cited is recognized and not disputed by the appellants, but they contend that here there was no aider, for the reason that what we regarded by the answer and counterclaim as such was denied by the plaintiffs in their reply; and that an allegation in an answer or counterclaim which is denied in a reply cannot be used to aid or supply a material allegation in the complaint.
It further is contended that we erred in approving the finding of the trial court that Henry Worley, the administrator, turned the possession of the premises over to the defendants upon "the understanding that they would pay the interest and take care of and pay the said mortgage (the $1,200 mortgage) and would also pay the taxes levied and assessed against the said property," for the reason that such finding, as is asserted, is not within the issues.
Upon the filing of the petition we thought there was sufficient merit to it to require a re-examination of the case, and so granted the rehearing. However, on further consideration of the case we are satisfied with the disposition made of it. We recognize the rule, and to that effect are the authorities and as stated in 1 Bancroft, Code Pleading, 11, 12 1038, and cases there cited, that a plaintiff may not rely upon a pleading of his adversary where he has specifically denied in his reply the allegations which he later relies on for assistance. As is seen, the plaintiffs had not alleged that the asserted claims of the defendants were hostile or adverse to the alleged title of the plaintiffs. In the answer and counterclaim of the defendants it was alleged that the defendants "claimed," acquired, and held the premises "adversely to said plaintiffs and each of them and to the world" and that they ever since 1911 were in the "open, *Page 51 notorious and exclusive adverse possession" of the property and paid all the taxes thereon "adversely to the plaintiffs." To that the plaintiffs filed a reply, not denying that the defendants "claimed" to possess the premises adversely to the plaintiffs, but alleged that the defendants took possession of the premises and held them with the consent and acquiescence of the administrator, Henry Worley, and continued to remain in the possession with his consent and acquiescence and with the assurance that they would take care of the premises, pay a reasonable rental value therefor, and pay all the taxes, and denied that the defendants took or remained in possession hostile or adverse to the rights or title of the plaintiffs. So, while the fact that the defendants had acquired title to the property by adverse possession was denied, nevertheless that the defendants, as stated in their answer and counterclaim, "claimed and asserted" title by adverse possession hostile and adverse to the alleged title of the plaintiffs was not denied. The case thus does not come within the rule contended for by the appellants.
Now as to the finding complained of: The plaintiffs by their complaint alleged that the $1,200 note payable to the Cardon Company was without consideration, that it was unassigned by the company, and though the mortgage given to secure the note was recorded, yet the company claimed no interest therein and had not assigned any. The plaintiffs therefore 13 prayed to have the mortgage canceled. It is further alleged by the plaintiffs that the property was leased or the possession thereof turned over to the defendants upon an agreement that they pay a reasonable rental value therefor and the taxes, which it was alleged the defendants had failed to do. The defendants denied that and alleged title by adverse possession. The plaintiffs replied thereto by alleging that the possession of the defendants was with the consent and acquiescence of Henry Worley, administrator. Because it was not alleged in either the complaint or the reply that the defendants *Page 52 had also agreed to pay the mortgage, it is urged that the finding that the defendants had agreed to do so was not within the issues. We think such fact, though not expressly alleged, yet was relevant and material to the issue of adverse possession, that is, as to whether the possession was hostile and adverse as alleged by the defendants, or with the consent and acquiescence of Henry Worley, the administrator, as alleged by the plaintiffs, and thus was within a material issue presented by the pleadings. So too was the fact, especially the payment of the mortgage, relevant and material as bearing on the payment or an accounting of the rental value of the premises. By the judgment of the court below the appellants Peterson were given the entire use and benefit of the premises for a period of more than eighteen years substantially for mere payment of taxes. If, in addition, they are required also to pay the mortgage as the court found they had agreed to do and as the evidence shows they did with moneys borrowed by them from Dives, we think they, least of any of the parties to the record, have cause to complain. There are other matters presented on the rehearing, but we think they all are properly disposed of by the opinion.
The opinion heretofore filed is therefore confirmed.
All the Justices concur.