On Petition eok Reheabing.
(192 Pac. 406.)
BURNETT, J.Accompanied by a somewhat testy argument, the petition for rehearing filed by the defendant urges the following points upon our attention:
“The court erred in refusing to pass upon the questions presented by the brief and record as to the possession by respondents, and therefore the jurisdiction of the court.
“The court erred in failing to pass upon the question presented by the record in this case, and orally presented at the time of the argument, to the effect that whatever may be said of the holding by respondents it did not operate to bar the interest of appellant until the death of Barbara Ferschweiler in 1913, and therefore the statutory time has not elapsed to give respondents title by adverse possession.
“The court erred in its construction of the evidence as to the testimony of V. A. Manning regarding the incident in Judge Bonham’s office.
“The court erred in holding that when the Judge Bonham incident was referred to appellant should have moved for a continuance, and because appellant did not so move she is now deprived of her right of a new trial by virtue of the newly discovered evidence.
“The court erred in holding that the letter was an effort of the writer to buy his peace.”
*4014. By the first of these subdivisions we presume that counsel alludes to the relation which the witness Lewis bore to the land, implying that he was the purchaser in possession of the same adversely to the plaintiffs here, thus ousting the court of jurisdiction at the suit of plaintiffs; the land being in possession of another. It is true, as disclosed by the testimony of Mr. Lewis, that Mr. Manning sold to Lewis 141 acres; but he says that it was exclusive of the 8-acre tract in dispute. Speaking of this tract, the witness said:
“In the first place, when I bought the land, I was supposed to have possession of that piece of land and farm, the same as the other, until such time as he could give me a title to this land, and in the spring, when I went to plow it, Mr. Wilquet told me I had better not do it, that there would be trouble over it, and I just give it up; then Mr. Manning hired me to plow and sow it for him.”
Lewis testifies that he put in crops on the 8-acre tract during year 1918 for Mr. Manning, that Manning plowed part of it, and that the witness sowed it to wheat for him. He says that the work which he did upon the tract was paid for by Mr. Manning. This clearly shows that as to the 8-acre tract in controversy Lewis was the mere employee of Manning, and that his physical presence upon the land as such employee did not disturb or impair the possession of Manning. Thus the averment of the plaintiffs that they were in possession of the premises at the beginning of the suit is upheld, even by the testimony of Lewis, giving the court jurisdiction to quiet title.
5, 6. As to the contention in the second subdivision, it is a primary principle that, if a party would rely upon any particular estate in the land, he must plead it. Indeed, the very end and office of a suit to *402quiet title is to call upon the defendant to assert whatever title he has, so that the same may be adjudicated. There is a difference between a suit to quiet title and one to remove a cloud. In the former, the plaintiff asserts his own estate, declaring generally that the defendant claims some interest in the land, without defining it, averring that the claim is without foundation, and calling upon the defendant, as in this instance, to “set forth herein the nature of her claim against the property so that it may be determined'by a decree of the court.” On the other hand, in a suit to remove a cloud, the plaintiff declares his own title, and in addition thereto avers the source and nature of the defendant’s claim, points out its defect, and prays that it be declared void as a cloud upon the plaintiffs’ estate. Given thus the opportunity of defining and asserting her right to the property in this suit to quiet title, and of combating the claim of the plaintiffs that they have been in continuous adverse possession of the land in question for 43 years, and especially showing that the defendant held merely an estate in remainder, which did not accrue to her until the death of Barbara Ferschweiler in 1913, the defendant contented herself with this answer:
“Admits that she claims some right, title, and estate in the real property described in plaintiffs’ complaint. Except as herein admitted, defendant denies every allegation set forth and contained in plaintiffs’ complaint and the whole thereof.”
She does not even assert that her claim is well founded. On such pleadings we may well doubt if the proper decree would not have been one in favor of the plaintiffs on the pleading. But whatever relation the defendant may have had to Barbara Fersch*403weiler, and however her tenure of the land may be affected by the death of Barbara in 1913, it can have no effect in this case, because it was not pleaded. Assuredly the pleadings cannot be controlled or governed by what counsel may have discovered for the first time just prior to the argument in this court on appeal, as stated in the argument for rehearing.
7. The third and fourth subdivisions of the petition refer to the testimony of Manning, regarding the interview with Judge Bonham, who, according to Manning’s testimony, had addressed him as the attorney for Michael Ferschweiler. The whole incident was immaterial. Even if Ferschweiler had been present and participated ip the conversation, it would not have disturbed the possession of the plaintiffs, or altered the fact that they had been in actual occupancy of the land for the period mentioned. At best, it was within the discretion of the trial court to refuse to open the case and grant further hearing merely for the purpose of allowing Ferschweiler to deny that he had employed Judge Bonham to represent him. We cannot say that the court abused its discretion, especially as no application was made for further hearing until long after the decree of the trial court was rendered.
We are unable to agree with counsel as to the evidentiary effect of the letter of Manning to the defendant. It was plainly an effort to buy his peace and does not merit further discussion. The principles underlying the pleadings in suits to quiet title are elucidated in the various text-books and need not be further explained.
The petition for rehearing is denied.
Affirmed. Behearing Denied.
McBride, C. J., and Bean and Benson, JJ., concur.