88 Wis. 627 | Wis. | 1894
1. Tins action is strictly a legal one for the trial of the question of title to the lands in dispute. The defendants seek to set up by way of counterclaim, in substance, that the certificates of redemption on which the plaintiff relies to defeat two of the tax deeds under which the defendants claim title to the premises are false, forged,
It seems to be well established that a counterclaim based upon the same facts which constitute a complete legal defense cannot be maintained. Page v. Kennan, 38 Wis. 320, 324; Lawe v. Hyde, 39 Wis. 345, 354; Pennoyer v. Allen, 51 Wis. 360. A court of law, wherein the right of trial by jury is secured to the parties, is the appropriate tribunal and the proper forum for the trial and determination of questions of title to lands. Page v. Kennan, supra. Fraud is an original ground of jurisdiction in equity; but courts of law exercise a concurrent jurisdiction . on this ground with courts of equity in very many cases, and it is a general rule, as between different tribunals having concurrent jurisdiction to administer and grant relief, that the one first acquiring jurisdiction will continue to retain it to the end. The defendant in an action of ejectment cannot, by setting up a legal title by way of counterclaim, or by attacking in that manner the title of the plaintiff on the ground of fraud, transfer the trial of the cause, so to speak, to the
The statute in relation to pleading defenses in actions of ejectment (sec. 3078, S. <fc B. Ann. Stats.) provides that “the defendant may demur to or answer the complaint, as in personal actions; he may also in his answer set up any matter as a defense which would have heretofore formed an equitable defense, in which case the answer shall contain a demand for such judgment as he claims.” An equitable defense may be of a character entitling the defendant to af-iirmative relief, or it may have a negative operation merely, protecting him from the plaintiff’s claim or demand; but in either case, under this statute, the equitable defense must be pleaded as a counterclaim, and a court will give to it proper effect, affirmative or negative, as the case may require. Weld v. Johnson Mfg. Co. 86 Wis. 551. In this case an equitable defense, not pleaded as a counterclaim, was held bad on demurrer, while the same matter in a case between the same parties, pleaded as a counterclaim, was held good on demurrer’, and a negative or defensive effect accorded to it to defeat the plaintiff’s action. Weld v. Johnson Mfg. Co. 86 Wis. 552. The matters set out in the proposed counterclaim constitute only defenses at law to the plaintiff’s claims of title, and not equitable defenses, within the proper sense of the term, and are not, therefore, the proper subject of counterclaim in the action; nor is there any reason why they should be so esteemed. An action of ejectment, instead of being a mere possessory action, as at common law, allowing a defeated and ousted.
It is true, also, that, upon substantially the grounds set up in the proposed counterclaim, the defendants, if the plaintiff had not brought his action, might have brought their original action, if in possession, against the plaintiff, to cancel the receipts or certificates and compel him to release his claim of title, if in other respects they could. bring themselves within the statute on this subject (R. S. sec. 3186); and if not in possession, and the plaintiff should dismiss his action, they could at once bring ejectment against him, or other appropriate action to protect their title, if they can establish it against his claim of title to the premises. R. S. sec. 3075. Besides, if any danger exists of the loss of testimony of material witnesses, the defendants could proceed to perpetuate, their testimony, as provided by statute; and in any event, if the plaintiff dismissed his action, they would not be more unfavorably circumstanced than before it was commenced. It is evident that the fact that the plaintiff may at will discontinue his action furnishes no ground for holding that the pleading tendered is available as a counterclaim.
2. The so-called tax receipts or certificates of redemption are in the usual form of such certificates, but were not countersigned by the county treasurer of the proper county. By the statute (R. S. sec. 1167), by virtue of which alone,.
3. Stipulations entered into in relation to the management and conduct of an action by an attorney are binding upon his client, and cannot be set aside or disregarded at his mere caprice or option. The court, however, may, upon proper cause shown, relieve a party from the effect of a stipulation, or set it aside; and Avhat is proper cause is matter of discretion with the court, the exercise of which
The fact that the defendants may not be able to get a fair trial in the county where the action is pending, on account of the influence or standing of the plaintiff and his relatives and friends, furnishes no reason for denying the plaintiff the benefit of a trial of the action by a jury. The statutory provisions for change of place of trial must be held to be a proper protection, as well in this case as others, to the rights of a party against' the effect of all such prejudicial influences. There is nothing to show that the defendants, by reason of the oi’der setting aside the stipulation, will be placed in a worse position than before it was made. The circuit court did not err in vacating the stipulation and restoring the parties to their former position.
By the Court.— The orders of the circuit court appealed from are both affirmed.