120 Ga. 661 | Ga. | 1904
The petition showed on its face that the defendant had, prior to the filing of the present suit, brought an action against the plaintiff to recover possession of the laud described in the present petition. There was no allegation that this suit had culminated in a judgment, or had been dismissed, or otherwise disposed of; and it was therefore to be presumed, in the absence of an averment to the contrary, that the same was still pending. After the petition had been amended by striking therefrom the prayers for extraordinary relief, all that remained related to matters which, if constituting a cause of action at all, coidd have been properly made the subject-matter of pleas in the action brought by the defendant against the plaintiff’s testator. He could in that suit have pleaded estpppel and subrogation, and also have set up that the deed relied on by the plaintiff was a forgery. No one doubts that the plaintiff’s testator could by plea have availed himself of these defenses; but the question to be determined is whether he was compelled to adopt that course instead of bringing an independent suit setting up. these equitable claims against the present defendant. In Fannin v. Thomasson, 45 Ga. 533, it was held, by two Justices, that though a defendant in an action at law may set up an equitable defense by his plea, he is not obliged to do so where such a defense constitutes an . independent claim against the plaintiff. While Mr. Chief Justice Warner concurred in the judgment in that case, he did not concur in the ruling just referred to, a.s clearly appears from what is said by him in the case of Grubb v. Kolb, 55 Ga. 630, where it was held, by two Justices, that, in view of the provisions of the
Judgment reversed.