Adams v. Warren

Mr. Justice Gabbert delivered the opinion of the court. Counsel for plaintiff contend that he is entitled to establish his counterclaim against the estate of deceased, and incidentally, as a personal obligation of defendants, to the extent that they may have received property as the heirs of deceased, for the reason that such property to a value sufficient to satisfy his claim, is held by them in trust for that purpose. Defendants having been defeated in their contention that the land in question was their absolute property, were entitled to be repaid the taxes paid thereon by the deceased and themselves. When the cause was remanded they [296] asserted this right by an answer. To defeat this claim, plaintiff could properly plead, by way of replication, and prove, any facts constituting a defense to it which was purely defensive, or, by way of reply, could controvert or avoid the claim for taxes, but nothing more. He could not do so, however, by pleading or attempting to prove a new cause of action over the objection of the defendants, for the reason that such a defense to their right to be reimbursed for taxes paid would be a departure from the cause of action stated in his complaint. Bliss on Code Pleading (2d ed.), § 396. The transactions between plaintiff and deceased, as stated in the complaint, and the counterclaim interposed to the claim of defendants to be reimbursed for taxes, were entirely distinct and separate. Neither had any connection with the other. In his former pleading, no claim was attempted to be asserted by plaintiff upon the transaction which he now seeks to make the basis of a cause of action against the defendants in his counterclaim; consequently, by the latter, he has attempted to state a new and independent cause of action, and not matter which merely supported the one stated in the complaint, and therefore, by his replication, has clearly departed from the cause of action originally pleaded. Durbin v. Fisk, 16 Ohio St. 533 : Lillienthal v. Hotaling, 15 Oregon, 371; 6 Ency. Pl. & Pr. 461. Plaintiff is limited in his recovery to the cause stated in his complaint, in which the land in question was the only subject-matter of controversy. For these reasons the items of the counterclaim could not be made the basis of a set-off as againstthe taxes advancedby the deceased, Iliff, or the defendants, nor established as a claim against the latter in this action for the excess. The testimony received in support of plaintiff’s counterclaim should have been rejected. The judgment of the district court is, therefore, reversed upon the cross errors assigned by defendants, and the cause remanded, with directions to dismiss ths cross-complaint of plaintiff, and render judgment in favor of defendants for" the amount of taxes found to have been paid by them and297 deceased upon the lands in question, with interest, and that such sum, together with the costs incurred by them in this court in this case, as well as below on the accounting, be repaid by plaintiff before title to such lands vested in him, and that on failure to pay such sum within some reasonable time to be fixed by the trial court, the decree establishing the trust be set aside and the action of plaintiff dismissed. Reversed and remanded.