40 Cal. 106 | Cal. | 1870
delivered the opinion of the Court:
The complaint in this action avers that, on the 28th of April, 1865, plaintiffs were the owners and in the exclusive possession of the premises in controversy; that, on that day, the defendant (Franklin) commenced an action against certain parties to recover the property, but the plaintiffs in this action were not made defendants in that action, and were not served with summons, and had no notice in any way of the pending of the action until the issuance and service of a writ of possession under it; that the plaintiffs were ousted
Tbe separate answer of Franklin contains denials as to tbe ownership of plaintiffs, and as a separate defence, avers tbat defendant is owner and in possession; tbat plaintiffs set up some claim to tbe land, which claim be avers is null and void, and asks for a decree quieting bis title. He also shows, as a separate defence, tbat plaintiffs were parties to tbe former suit, and tbat tbe judgment is binding on them.
When tbe case was called for trial, defendant requested the-plaintiff to elect whether be would proceed upon bis complaint as in ejectment, or as a bill in equity, to set aside tbe judgment therein mentioned. Plaintiff elected to treat tbe complaint as a complaint in ejectment, and waived any claim to set aside tbe judgment of defendant against plaintiff set forth in tbe.complaint, and stated to tbe Court tbat be should offer no proofs on tbat branch of tbe case.
Tbe plaintiff then called a witness, and asked who was in possession of tbe premises at tbe time of tbe commencement of tbe action. Tbe question was objected to, on tbe ground tbat all tbe allegations in tbe defendant’s answer were admitted, and, under tbe pleadings, tbe plaintiff could not be allowed to offer any testimony in tbe case. Tbe objection was sustained, and tbe ruling duly excepted to. Tbe defendant, then, upon motion, took judgment upon the pleadings.
Tbe complaint does not show tbat tbe defendant ever recovered judgment against tbe plaintiffs. It avers tbat tbe defendant obtained possession through a judgment against
It is claimed that the answer contains a cross-complaint which should have been answered by the plaintiff; and not being answered, is admitted. This cross-complaint is the averment that the defendant is the owner of the demanded premises and in possession, and that the plaintiff’s claim is a cloud upon his title. These averments are set up as a defence, and not as the foundation of a claim for affirmative relief against the plaintiff. They are all appropriately matters of defence, and, except as to the possession of the defendant, are all controverted by the positive averments of the complaint, and that fact, i. e., the defendant’s possession, is essential to the plaintiff’s case.
We do not deem it necessary now to inquire whether a bill to quiet title may be filed as a cross-complaint by the defendant in an action of ejectment. It certainly is not an equitable defence to the plaintiff’s cause of action. The plaintiff, in an action of ejectment, cannot ask that he be adjudged the owner and put into possession, and that the defendant be enjoined from claiming title to the land recovered. He must rely upon his judgment as a bar. Where the defendant claims to be the owner, the issue is whether plaintiff or defendant has the better title, and it seems reasonable to suppose that a judgment hr favor of the former should be as conclusive upon the title and give the same measure of relief as to the latter; that its effect would be simply a bar in favor of either.
But however this may be, where matters which are proper matters of defense are pleaded a- j such, we are clear that they should be regarded only as such, notwithstanding a prayer
It lias been settled by tbe decisions of tbis Court, but is as clear from tbe Practice Act itself as any decision could make it, that tbe plaintiff need not reply to any affirmative matter set up in defence, or by way of avoidance or counter claim.
Judgment and order refused, and cause remanded.
