78 Wis. 227 | Wis. | 1890
Upon a careful examination of the facts stated in the answer, it seems evident that all the rights of the defendant can be adjudicated and protected without the presence of the Fergusons and Lewis as parties. If the-facts stated in the answer are true, then the defendant has a good title to the whole of the logs in question as against, the plaintiff, and that is all that is necessary for it to show in this action; and if the answer is true, then the Fergusons and Lewis have no interest in said logs as against the defendant. If it be urged that it may be necessary, under some aspect of the defense, to show that the Fergu-sons and Lewis have paid the purchase money for the land to the plaintiff, in order to make the title of the defendant, good, that fact may be shown as well without their being parties to the action as otherwise. So may the fact be shown, as alleged in the answer, that they had the right to cut and sell the. logs as against the claim of the plaintiff.
Upon what ground the demurrer to the answer was sustained does not appear, unless it be upon the ground that, as the defendant had 'stated that it pleaded it as a defense and a counterclaim, the demurrer ought to be sustained because it failed in stating facts constituting a counterclaim. It is evident that in the sense in which the word “ counterclaim” is used in the statute, the answer does not state facts amounting to a counterclaim. There is no fact stated in the answer which entitles the defendant to any affirmative relief against the plaintiff, but on the contrary all the facts stated are defensive matters, and if proved would entitle the defendant to have the plaintiffs complaint dismissed as asked for in the prayer of the answer. It seems to be urged by the learned counsel for the plaintiff that the demurrer should be sustained because the defendant has misnamed its answer by calling it a counterclaim, when in fact it is merely a defense.
We do npt think the mere fact that the answer was improperly named is the subject of a demurrer. We do not think, if in an action on a promissory note the defendant should commence his answer by saying that, by way of counterclaim, he alleges that on a certain day before the action was commenced he had fully paid to the plaintiff the amount due on the note, the pleading should be held not good as not stating a counterclaim, when it is apparent on its face that it states a good defense to the action. Calling it a counterclaim should clearly be treated as an immaterial statement in the answer. If, as would seem to be the idea of the learned counsel for the plaintiff, the pleading can stand as a good defense to the action, notwithstanding the demurrer is sustained because it is not a counterclaim, then
It is insisted by the learned counsel for the plaintiff that the answer is not demurred to because it does not state facts constituting a defense to the plaintiff’s action, and he declines to enter into an argument upon that point; but, as we think the demurrer ■ should have been overruled if a good defense is pleaded, notwithstanding it was1 improperly named a defense and countei’claim, we must consider the pleading as a defense, and see if it contains any new matter constituting a defense, within the meaning of the Code. In examining the answer it must be admitted that some of the facts stated may have been admissible under a. general or special denial, and do not, therefore, constitute a defense, within the meaning of the Code. Probably the statement made in the answer that the plaintiff authorized the Fer-gusons and Lewis to cut and sell the timber on the land in which he claims an undivided interest; and that the defendant bought the logs from them or their vendee, could be shown as a defense to the action without pleading it. But there are other facts stated in the answer which may be an equitable defense for the defendant to the plaintiff’s action which could not have been given in evidence without pleading them as a defense. So far as the defendant seeks to defend against the plaintiff’s action on the ground that the plaintiff’s interest in the real estate from which the logs were taken was simply a' mortgage interest, and that the persons who cut the logs and sold them to it or its grantor were the equitable mortgagors a)nd in possession with right, as such, to cut and remove the timber so long as the security of the plaintiff was not materially injured thereby, such defense was and is clearly an equitable de
That a person taking tbe legal title to real estate from a third person may in equity be a mortgagee to some person
By the Cov/rt.— The order denying the motion of the defendant to make new parties is affirmed, and the order sustaining the demurrer to the answer of the defendant is reversed, each party to pay his own costs except that the respondent pay the costs of the clerk of this court; and the case is remanded for further proceedings.