| Mo. | Jul 15, 1858
delivered the opinion of the court.
No opinion of the merits of this case can be drawn from the record, as it appears to have been determined upon points entirely technical. After Toler was admitted as a co-defendant and the joint answer of the two defendants was filed, all the subsequent proceedings consisted of motions to strike out or to reinstate the answer, or to file a new one. The result was, after a varied course on these motions arising from a difference of opinion in several judges before whom the case accidentally came for trial, that the plaintiff dismissed-as to Toler, took a judgment by default against Stewart, his answer having been stricken out or not being regarded as his answer because not sworn to by him, and a general judgment finally given for the plaintiff.
The plaintiff had no right to dismiss as to Toler after Toler had been admitted as a co-defendant by the court.
It is not to be inferred from the record that it was the intention of the court to pass upon the sufficiency of the answer, since the plaintiff got rid of the answer, so far as Toler was concerned, by dismissing. It may be well enough, however, to state our opinion that the answer was a legitimate one. The plaintiff’s title was derived solely from a mortgage executed by Toler, and the answer substantially averred that this mortgage was obtained by false and fraudulent pre-tences, and was therefore void; or, if it was honestly procured at the time, it had at all events been paid off. In either event, it is clear that the plaintiff had no title, and it can not be doubted that, since the pi-actice act of 1849, an equitable defence may be made to an actioix which before that statute would have been called an action of ejectment.
The fact that Toler had sold his interest to Stewart did not affect the question to be tried. The plaintiff in ejectment can only recover upon the strength of his own title, and if the mortgage had been extinguished, as asserted in the answer, or was fraudulently obtained and therefore void, it was not material how matters stood between Toler and Stewart. The fifth section of an act concerning ejectment authorizes the court to allow the person through whom the defendant claims title to be made a co-defendant.
The judgment will be reversed and the cause remanded.