(concurring specially)'. This appeal merits little consideration. In the printed brief of appellant all that is said of the pleading is that the complaint is in the statutory form of an action to quiet title, and the answer is a general denial. In such an action a general denial raises no issue; it amounts to nothing. The gist of the complaint is that the defendant claims some title or interest in said land adverse to the plaintiff. A general denial is a disclaimer. It is an averment that the defendant does not claim any title or interest ini the land. The complaint is a mere challenge to defendant to set forth and establish an adverse claim or to abandon it. When a defendant answers and asserts a claim of title, he becomes practically the plaintiff. He takes the affirmative in pleading and proof. The plaintiff defends against the claim set forth in the answer. Steinwand v. Brown, 38 N. D. 607, 166 N. W. 129; Walton v. Perkins, 28 Minn. 413, 10 N. W. 424.
As it developed on the trial the claim of defendant was that on October 11, 1915, the Moreau Lumber Company held the legal title to the land in question and made a written contract to convey the same to the plaintiff as trustee for one Hoffman, her son-in-law, and that it was done to defraud the creditors of Hoffman. There was also a claim that Hoffman made payments on the contract. On April 27, 1916, Hoffman, now deceased, made to appellant a mortgage on the land to secure $520 and interest. Now it seems the lumber company has obtained a foreclosure judgment on the contract for the balance of the purchase price, $1,362.70, and interest, and appellant desires the court to adjudge that the land contract was taken in trust for Nick Hoffman, and that appellant be given the right to redeem the land in the same manner as if the title were in Nick Hoffman. But the court found, in effect, that Nick Hoffman did not make the payments, and that the land contract was not made in trust for him, and that he had no title or interest in the land. There is some evidence that Hoffman had farmed the land under a lease from the lumber company, and that payments were made from crops which he produced on the land, and that the Hoffman mortgage was given for lumber sold to improve the land. But under *566the answer the testimony offered was all clearly inadmissible, and much of it was mere hearsay and not admissible under any form of pleading. Waiving objections to the answer, and considering the testimony, the case is not free from doubt. However, it is certain the written contract by the lumber company was to convey the land to the plaintiff, and it does not appear by clear and convincing evidence that the contract was made in her name as trustee for Hoffman, or that he made the payments. Indeed it does appear that the weight of testimony is to the contrary. In such a case to prove one a trustee by oral testimony, the pleadings should fairly present the issue, and the proof must be clear and convincing.
The judgment should be affirmed.