Colts, J.
The correctness of the order dismissing the suit is the only question to be considered. In vindication of the *301order, it is said that it plainly appeared, from the facts stated in the complaint and the answer of John J. Tobin, that the legal title was in dispute. And it is said that it is the settled rule that a court of equity will not interfere to make a partition under such circumstances, but will require the title to be first established by an action at law. That is the general rule, undoubtedly, and was acted upon by this court in Deery v. McClintock, 31 Wis., 196, and Hardy v. Mills, 35 id., 142. But in both those cases, it will be noticed, there was a trial; proofs were taken; the state of the title was inquired into; and the court was able to say from the evidence, not only that the title was in dispute, but that the plaintiff had an adequate remedy at law to settle the question of title; in other words, that his position was such that he might bring ejectment. But in this case there has been no such investigation as to the condition of the title, or as to who might maintain an action at law. Actual possession of the premises is claimed by both the plaintiff and the defendant Jolvn J. Tobin. It does not appear who has the exclusive possession, if any one. If the plaintiff is in the actual possession with his cotenants, it is certain that he cannot maintain an action of ejectment to settle any controversy about the title. Possibly, if he should bring such an action against John J. Tobin alone, the denial in the latter’s answer of all right, title and interest in the plaintiff, might be treated as equivalent to a confession of ouster, and estop him from asserting that the tenancy in common had not been denied or destroyed by him. But he is not the only party defendant. The other defendants herein might answer to an action at law brought by the plaintiff, that their possession was not exclusive or hostile to his rights. So it is impossible for the court to say, at this stage of the cause, who can maintain an action at law to settle the question of title. Did the fact clearly appear, either from the pleadings or after trial, that the plaintiff might bring an action to settle the controversy about the title, and were there no other parties interested therein, it would be in the discretion of the county court either to dismiss this suit or stay proceedings herein *302until the plaintiff had brought such an action. But until that fact is made clearly to appear, even as between the .plaintiff and John J. Tobin it seems to us the partition suit should not be dismissed. Why, if the plaintiff is in the actual possession of an undivided two-thirds of the premises, as he alleges in his complaint, should he be summarily turned out of court when ashing a partition? Or why should the court attach any more weight to the allegations of the answer of John J. Tobin than to the statements in the complaint, in determining the question as to who should bring an action at law to settle the title.
But this is not all. There is still a further consideration which demonstrates to our minds that the dismissal of-this suit was erroneous. The infant heirs have in their answer assailed the validity of the tax deeds which are the foundation of John J. Tobin’s rights. It is true, they have not denied the tenancy in common of either the plaintiff or John J. Tobin/ but they do distinctly deny all right, title and interest of said John J. Tobin of, in or to the land or any part thereof, through or under the tax deeds or either of them. They insist that whatever interest he took or acquired through or under the tax deeds, he holds in the character of a trustee. Now we think .this is such a controversy between the codefendants in respect to the title, as may be determined in this suit, under sec. 16, ch. 142, R. S. 1858. That provision is: “Any defendant may deny the joint tenancy or tenancy in common of any codefendant, and any issue of fact may be tried by a jury as in other cases.” Under this section, it seems to us, the court would be warranted in trying in this suit the issue raised by the answer of the infant heirs, and in determining whether the interest which John Tobin -and the defendant John J. Tobin acquired under the tax deeds was in the nature of a trust estate, which inured to their benefit by reason of any fraud or violation of duty on the part of John Tobin in obtaining them.
It follows from these views that the order of the county court dismissing the action was erroneous and must be re *303versed, and the cause remanded for further proceedings according to law.
By the Gourt. — So ordered.
EyaN, C. J., took no part.