Babdeeh, J.
The action of the court below seems to have been based upon the idea that defendant’s possession was ■exclusive and adverse to plaintiffs, and that the rights of the parties could not be determined in an action for partition, under Deery v. McClintock, 31 Wis. 195, and other cases in this court. The view we have taken of the case renders it unnecessary to consider or determine whether, the same matter having been set up both in abatement and as a counterclaim, the former is deemed to be waived, as suggested in Hooker v. Greene, 50 Wis. 271.
An inspection of the pleadings shows that there is absolutely no controversy as to the legal title of this land. Reither does the proof disclose any such adverse occupancy •as to come within the rule of the cases in partition that decline to consider such controversies. Referring now to the •question of title, the complaint shows that Morgan is the owner of an undivided one fourth, and Lloyd an undivided •one eighth, interest in the land. The answer admits this title, but alleges that the defendant Mueller has a contract, through their lawful agent, for a conveyance of their interest to him. The only controversy is as to the existence of this contract. Under his alleged contract the defendant *244went into possession of the land. Such possession was not hostile or adverse to the plaintiffs. By his own admission, it was in direct subordination to their title. His contract was executory. While executory his possession was that of his vendor, and he could not set up adverse occupancy. Furlong v. Garrett, 44 Wis. 111; Simpson v. Sneclode, 83 Wis. 201; Whitcomb v. Provost, 102 Wis. 278. The proof also shows that his claim, was in subordination to, and not adverse to, the plaintiffs’ title. His rights, if any, were such that he could only obtain relief in equity. His remedy was to obtain a specific performance of his contract. His counterclaim properly set up his grounds for relief. The controlling reason why controversies over the legal title to land will not be tried in partition suits is that such controversies are more properly cognizable in courts of law. But no such reason exists in this case. The defendant simply says that plaintiffs are not entitled to partition, because they have agreed to convey their title to him. This is denied. No good reason is perceived why the whole controversy may not be disposed of in this action. If the contract alleged was legally made, the defendant may secure specific' performance, and the right to partition will be denied. If the defendant fails to make a case, the plaintiffs are entitled to a partition of the premises. This is because defendant’s possession as a cotenant is not hostile to plaintiffs, and their alleged possession under the contract is in subordination to the title under which they claim, and is in reality the possession of their vendors. All of the cases agree that, if the issues of title claimed and asserted are equitable in their nature, they may be disposed of in the partition suit. See Deery v. McClintock, 31 Wis. 195; Morse v. Stockman, 65 Wis. 36.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings, according to law.