72 Cal. 1 | Cal. | 1887
— The appellant, Remnant, who was'defendant in the court below, appeals from a judgment, rendered against him in an action of ejectment.
1. In the “separate defense” defendant merely averred that plaintiff entered into a contract with defendant to convey to the latter the premises described in the complaint, upon the payment by defendant to plaintiff of the sum of $3,410; that defendant paid $1,750 of this money, and was let into possession of the premises; and “ that the plaintiff has not paid or returned to this defendant said last-named sum of money, or any part thereof, but still retains the whole thereof.”
The complaint in this case is in the ordinary and proper form of a complaint in ejectment. An answer to such a complaint should contain some matter of denial or averment constituting a defense—either legal or equitable—to the action. It would have been a good answer to have averred that the remaining purchase-money was not yet due, or to have stated facts showing that it had been paid, and that defendant was thus entitled to possession under the contract, and to compel the execution of a conveyance; but it is impossible to conceive how the bare fact that plaintiff had not paid back to defendant the $1,750 would constitute any defense whatever. There was no error, therefore, in sustaining the demurrer to this part of the answer.
2. The averments of the cross-complaint are, in brief, that on April 6, 1878, plaintiff represented to defendant that he was the owner in fee of the premises described in the complaint, and could convey them by a good and sufficient deed free from incumbrances; that defendant was thereby induced to purchase, and did purchase, said premises from plaintiff for $3,410; that defendant paid plaintiff $1,750 as part of the purchase price, and then, on said sixth day of April, 1878, plaintiff and the de
The prayer is, that defendant have judgment against plaintiff for $1,849.60, with interest from January 5, 1879.
To allow a defendant in an ordinary action of ejectment to set up matters which do not constitute a defense, but are intended merely as the foundation for a money judgment against plaintiff, would be to sanction something unknown to the principles and rules of pleading and practice.
Appellant’s counsel argues that the act of bringing the suit by plaintiff was itself a rescission by him of the contract. If that extreme view of the matter could possibly be held correct, it is difficult to see how it would give the cross-complaint any better standing as a pleading to a complaint in ejectment. But if appellant was in possession under the contract, as the argument here assumes, then, upon appellant’s failure to perform his part of it, the bringing of the ejectment suit was not in rescission, but in pursuance of the contract.
We think that there was no error in sustaining the demurrer.
The court made a number of findings entirely outside the issues; but there were sufficient findings to show plaintiff’s ownership and right of possession.
. Judgment affirmed.
Thornton, J., McKinstry, J., Temple, J., and Sharp-stein, J., concurred.
Rehearing denied.