140 Wis. 282 | Wis. | 1909
The learned trial court decided this ease upon the theory that, because of plaintiff having the bare legal title to the properly in question without any real right of possession,' — the whole equitable title and beneficial interest being, as was supposed, in the minor heirs of the deceased; husband of appellant and, necessarily, also the right to be clothed with the legal title, — he was entitled to recover, since, as the court held, the facts could only prevail in equity as against him at the suit of the minors who were not parties to this action.
The grounds for the judgment are quite novel. They seem) to fatally conflict with the elementary principle that in order to enable a person to recover in ejectment he must at least be entitled to possession of the property in dispute at the time of commencing the action. One may have the legal or equitable title without the right of possession, in which case, obviously, he cannot recover in ejectment, and the facts showing that he-has no such right constitute a legal defense and so not only need- not, but cannot properly, be interposed as an equitable-defense in the form of a counterclaim. Page v. Kennan, 38 Wis. 320; Lawe v. Hyde, 39 Wis. 345, 354; Pennoyer v. Allen, 51 Wis. 360, 8 N. W. 268; Brown v. Cohn, 88 Wis. 627, 60 N. W. 826; Appleton Mfg. Co. v. Fox River P. Co. 111 Wis. 465, 87 N. W. 453. The reason thereof is that the statute (sec. 3078, Stats. 1898) as it has been construed provides that equitable defenses only must be pleaded in form as counterclaims and the issues be tried by the court. Lombard v. Cowham, 34 Wis. 486; Du Pont v. Davis, 35 Wis. 631; Lawe v. Hyde, 39 Wis. 345; Stowell v. Eldred, 39 Wis. 614; Fuchs v. Treat, 41 Wis. 404; Dobbs v. Kellogg, 53 Wis. 448,
It cannot well be maintained but that the facts pleaded and found here constitute a legal defense and so were not required to be pleaded as a counterclaim, or but that they constitute such defense and, for reasons which will hereafter be stated, they constitute a good equitable defense as well. The learned trial court, as before indicated, held that the minors were the only parties really interested adversely to respondent and that, since they were not parties to the action, appellant could not by counterclaiming maintain her possession and obtain relief in their favor.
True, a counterclaim, in the general sense, must be one constituting a cause of action in favor of the defendant against the plaintiff. The tidal court was not called upon to deal with such a matter, but, at the best for respondent, with an equitable defense, one which under the old practice was a defense as distinguished from a counterclaim. It must be remembered that this whole subject is governed by the Code and, therefore, it is only confusing and misleading to cite ancient authorities or such as do not recognize fully the Code system.
The statute provides that “the defendant . . . may . . . in his answer set up any matter as a defense which would have heretofore formed an equitable defense, in which ease the answer shall contain a demand for such judgment as he claims. . . .” Sec. 3078, Stats. (1898). Facts showing that a party, sued in ejectment, is in possession under or in the right of a person who should be clothed with the legal title by act of the person seeking to gain that possession in ejectment,
If the preceding were not correct the facts pleaded constituted a plain legal defense to the action as to the homestead forty because a legal right to a full equitable title to that descended to respondent to hold for life or during the period of her widowhood (sec. 2271, Stats. 1898), and was there rested at the time of the commencement of this action and for a long time thereafter, as indicated in the statement of facts. Moreover, she was entitled to possession of the whole with her children, who were the real equitable owners, us their representative, subject to the homestead right and dower right, in case of there being any, against any person not having a better right.
The appellant had an undoubted right, upon the facts' stated as matter of defense and found, to judgment establishing her right of possession. She also had a right, on the same facts pleaded as a counterclaim, to have the affirmative relief .asked in confirmation and protection of her homestead right. Moreover, if it were necessary for the other heirs to be before the court for their due protection, or because a complete determination of the controversy was otherwise impossible, which does not seem to be the case, they should have been brought in under sec. 2610, Stats. (1898), whether there was a request therefor by either party or not, instead of rendering judgment for plaintiff with costs, as was done. Sec. 2610, Stats. (1898); McDougald v. New Richmond R. M. Co. 125
Tbe trial court suggested without deciding, that appellant was not entitled to dower in the property under sec. 2159, Stats. (1898), since her husband died seised of an equitable-title only. If that be wrong the judgment is clearly erroneous, since, where one has an unassigned dower right and is-left, at the death of her husband, with her children in possession of the property in which such right subsists, she may retain such possession by virtue of sec. 3812, Stats. (1898), without having such dower assigned. She may assert such right effectively in ejectment both for defense and attack. Sec. 3094, Stats. (1898). Here again, as at substantially all points in the matter of judicial procedure, the Code governs, not the common law.
The question of whether a widow is entitled to dower in real estate of which her husband dies possessed of only a mere equitable title, has been recently considered and resolved in the negative by this court in Will of Prasser, ante, p. 92, 121 N. W. 643. It was there said that an estate of inheritance, as the term is used in the statute, is just what such term signified at common law, consequently that the statute-gives dower only out of legal estates. But where the husband dies seised of the full equitable title and the owner of the whole beneficial interest, with only the mere legal title-outstanding in a person having no duty to perform in respect to the property, as in this case, but to convey it to the equitable owner, the estate is to all intents and purposes a legal estate, — an estate of inheritance, within the meaning of the statute, in which the wife is entitled to dower.
The last foregoing may be, and probably is, out of harmony with some decisions elsewhere under statutes similar to ours,, biit it needs and will have no defense at this time hy reference to supporting authorities. It is in harmony with the-doctrine of this court that the dower right is to be favored in
By the Court. — Tbe judgment is reversed, and cause remanded with directions to render judgment in appellant’s favor in accordance with this opinion.