Brown v. Cohn, 88 Wis. 627

Brown v. Cohn

88 Wis. 627 | Wis. | 1894

Pinkisy, J.

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, *633and fraudulent, and that they constitute a cloud and claim upon and against the defendants’ title bo the lands in question ; and they ask judgment that the receipts be delivered up and canceled, and their title to the lands be quieted and established as against the claims of the plaintiff. There can be no doubt whatever that the defendants, under their original answer, could avail themselves of, and give in evidence, all the matters set up in their so-called counterclaim. Their defense at law in these respects is perfect. But they insist that they have a right to plead these facts byway of counterclaim, and obtain the affirmative relief prayed for, inasmuch as the plaintiff may, as of course, dismiss his legal action, and prevent a judgment that would be conclusive upon the title to the lands, and thus leave their title or claim of title subject to the hostile claim and cloud cast upon it by the plaintiff’s claim and his alleged false and forged receipts or certificates of redemption.

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 *634equity side of the court, and make the action, one of equitable cognizance instead of a legal action triable by jury, if there is no other subject or peculiar ground of equitable cognizance. If the contention of the defendants is maintainable, nearly eveiy action for the recovery of real estate could, by mere form of pleading, be made cognizable in equity, and the plaintiff be thei’eby deprived of a trial of his action by a jury.

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. *635defendant to turn around and maintain a new action of ejectment against his opponent, is, by force of the statute (S. & B. Ann. Stats, sec. 30SS), followed by a judgment “conclusive as to the title established therein, upon the party against whom it is rendered, and upon all claiming from, through, or under him by title accruing after, the filing of a notice of the pendency of the action,” etc., subject to certain exceptions not material to the present case. It binds the part}' against whom it is rendered, and those in privity with him. Smith v. Pretty, 22 Wis. 655; Wolf River Lumber Co. v. Brown, post, p. 638, and cases cited.

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,. *636they could become legal evidence of redemption, it is provided that such a receipt “before it shall be evidence of such redemption shall be presented to the treasurer of the same county, and be countersigned by him.” The receipts could not be legal evidence of the redemption of the lands described in them, and, being void on their face, could not constitute a claim of redemption or cloud upon the title which a court of equity would interfere to cancel or set aside, for their invalidity would necessarily appear whenever they might be produced. Meloy v. Dougherty, 16 Wis. 269; Ferson v. Drew, 19 Wis. 225; Cornish v. Frees, 74 Wis. 495; S. L. Sheldon Co. v. Mayers, 81 Wis. 632; Commercial Bank v. Fire Ins. Co. 84 Wis. 18. Probably the receipts may be used on the trial to corroborate the plaintiff’s evidence that he actually paid the proper sums to redeem the lands from the tax sales described in them, or to contradict the officer to whom it is said the money was paid, should he deny that he received it; but a resort to a court of equity to cancel or set them aside merely because they might be used for such a purpose would be not only unauthorized, but an unheard of proceeding. The questions in respect to the Winton tax deed are legal questions arising upon the record of the injunction suit to which he was not a party, and upon such proof of redemption from the sale upon which the deed Avas founded as the plaintiff may be able to produce. The circuit court rightly denied the motion for leave to interpose the proposed counterclaim.

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 *637will not be interfered with on appeal, unless this discretion has been abused. It is plain that the stipulation waiving a trial of the action by a jury was made when it was supposed that the trial involved no difficult or disputed questions of fact and that the case would turn substantially or wholly upon questions of law. Subsequently it was ascertained that questions of fraud and forgery were involved and are to be tried, and in respect to which charges of perjury were suggested at the argument. While we would not have been inclined to reverse the order had the plaintiff’s motion been denied, yet, in view of the facts and circumstances disclosed, we hold that the granting of the motion was within a fair exercise of judicial discretion.

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.