Cohen

This is the ordinary action to quiet title to land. In his amended answer, filed on the day of the trial, defendant denied that plaintiff is the owner in fee of the property claimed. Further answering, defendant alleges: "That defendant and his predecessors in interest were for a period of more than five consecutive years prior to the commencement of this action in the open, notorious, exclusive, continuous, uninterrupted, peaceable and adverse possession of said property and the whole thereof, under claim of right and title thereto, exclusive of any other right; and that plaintiff and his predecessors have during all of said years paid all the state, county and municipal taxes levied and assessed against said property." By way of cross-complaint defendant avers "that he is now and for a period of more than five years prior to the date of the filing of the complaint herein, has been the owner of, and in the possession of all those certain lots," describing the real property in question; that plaintiff claims some right to or interest in said property, without right, and prays the decree of the court that plaintiff take nothing by his action and that defendant be adjudged the owner…

Plaintiff asks, by petition, for a modification of the opinion filed herein "by striking therefrom the last paragraph thereof, and inserting in lieu thereof an order directing the trial court to enter judgment on the findings in favor of appellant, pursuant to appellant's motion." Attention is called to the pleadings from which it appears that plaintiff in his complaint simply alleged ownership in himself and the assertion of an adverse claim, without right by defendant, to the land in controversy. It is hence suggested that the complaint did not show an equitable right in defendant, or a duty from plaintiff to defendant, upon which the maxim — He who seeks equity must do equity — can be invoked. Buck v. Canty, 162 Cal. 226 , 237, 238, [ 121 P. 924 , 929], is cited, wherein the court said: "The equity of the defendant not being apparent on the face of the complaint, the only other way by which it could be presented would be by setting it up in the answer." But the answer in the case here did not allege a purchase by defendant or his predecessor at a tax-sale, and only referred to the payment of taxes for five years as an element in his title by adverse possession. As…