76 Wis. 387 | Wis. | 1890
This action on the part of the plaintiff, if maintainable at all, must be maintained under the last clause of sec. 3186, R. S. The complaint showing that the plaintiff is not in possession of the land which is the subject of the controversy, he cannot maintain an action under the first clause of said section. The last clause of said section reads as follows: “ And any person not having such title or possession, but being the owner and holder of any lien or incumbrance on land, shall also have the same right of action as the owner in fee in possession, to test the legality and validity of any other claim, lien, or incumbrance on such land, or any part thereof.” On a former appeal by the plaintiff from an order sustaining a demurrer to the complaint, this court held that the complaint stated a cause of action under the last clause of said section above cited. See Wilson v. Hooser, 72 Wis. 420. ¥e think there can be no doubt on the question as to whether the counterclaim states facts sufficient to constitute a cause of action. The facts stated by the defendant in his counterclaim would certainly be a good cause of action under the first clause of said sec. 3186, R. S. lie alleges possession and the legal title in himself to the land in question, and states facts showing that the plaintiff is setting up a claim to said land, or a lien by mortgage thereon, and alleges that such claim is fraudulent and void as to his title. If, upon the trial upon such a complaint, the plaintiff succeeded, he would clearly be entitled to the relief authorized in the first clause of said section. It seems to us wholly unnecessary to cite authorities on this point. The objection that there is another action pending between the parties for the same cause has no
The objection to the counterclaim that the cause of action stated therein is not pleadable as a counterclaim in this action is realty the only one which was urged upon the court on the hearing of this appeal. The argument is that a mere defense to the plaintiff’s cause of action would afford the defendant all the relief that he can obtain under his counterclaim, and therefore the counterclaim is wholly unnecessary. It is also argued that the counterclaim does not contain any new matter not set up in the complaint, and therefore is not well pleaded as a counterclaim. We cannot agree with the learned counsel in either of his contentions. On pleading mere defensive matter to the plaintiff’s complaint, the defendant could not obtain any final adjudication of his rights in the action, or the relief he is entitled to under said sec. 3186, R. S. The plaintiff could always defeat a final adjudication of the rights of the defendant by withdrawing or dismissing his action, and the only satisfaction the 'defendant would have would be the satisfaction of knowing that the plaintiff would pay the costs. This fact alone is sufficient to show that, if the defendant has in fact a good cause of action against the plaintiff, under which he is entitled to affirmative relief, and such cause of action arises out of the transaction set forth in the complaint or is connected with the subject of the action,
By the Court. — -The order of the circuit court is affirmed, and the cause is remanded for further proceedings.