Grignon v. Black

The following opinion was filed March 18, 1890: Tayloe, J. Upon the hearing of this appeal the learned counsel for the appellants makes the same objections to the defendant’s counterclaim that were made in the court below, and insists that the demurrer to such counterclaim should have been sustained —first, on the ground that it does not state facts sufficient to constitute a cause of action, and second, that the facts set out therein are not pleadable as a counterclaim in said action. All the other objections made in the court below and in this court must be of no avail to the plaintiffs, if the counterclaim states a cause of action in favor of the defendant and against the plaintiffs, and if the facts stated therein are pleadable as a counterclaim to-plaintiffs’ action. In determining the sufficiency of the counterclaim, we must be confined to the facts stated in the counterclaim itself; and the admissions made in the answer of the defendant not included in such counterclaim cannot be resorted to by the plaintiffs to test, the sufficiency of such counterclaim. The counterclaim is, in substance, an action by the defendant against the plaintiffs; and its sufficiency must be determined, upon demurrer, the same as it would have been had the defendant been the plaintiff in the action, and the facts stated in the counterclaim were set out in his complaint. Considering the facts stated in the counterclaim — 682 — as a cause of action by the defendant against the plaintiffs, we must hold that such facts constitute a good cause of action against the plaintiffs in favor of the defendant. The facts stated very certainly state a good cause of action under our statute (sec. 3186, R. S.) to quiet the defendant’s title to the real estate in question. The demurrer to the counterclaim admits all the material allegations of fact in the pleading. So in this case the actual possession of the defendant for a long series of years of the lands in dispute is admitted. It is also admitted that the defendant is the owner in fee of said lands; and the commencement of this action by the plaintiffs shows the setting up of a claim to said lands. See Clark v. Drake, 3 Pin. 228; Maxon v. Ayers, 28 Wis. 612; Manning v. Heady, 64 Wis. 630; Wals v. Grosvenor, 31 Wis. 681; Lee v. Simpson, 29 Wis. 333; Pier v. Fond du Lac, 38 Wis. 470. These admitted facts constitute a good cause of action under said sec. 3186, R. S., in favor of the defendant against the plaintiffs. It is urged by the plaintiffs that the defendant has an adequate remedy at law to maintain his right to said land. In this, we think, the learned counsel for the plaintiffs is clearly mistaken. In considering this counterclaim, the demurrer admits that the defendant has the actual possession of the land in dispute. In such case the plaintiff cannot maintain an action at law against a person claiming possession of or title to- such land. His actual possession stands in the way of maintaining ejectment or any other possessory action against any person not in possession and not committing an actual trespass on said land. See Carmichael v. Argard, 52 Wis. 607. His remedy to silence the pretensions of others making claim to the land is under the statute, or by an action guia timet at common law. Both these actions are equitable in their nature; and the court, in case the title of the plaintiff is disputed by the party not in possession, must try the question of title either with or without a jury, as the court shall determine. If the party — 683 — out of "possession desires a jury trial as to his title, he may commence an action of ejectment to try such title, and, having commenced such action, he might apply to the court of equity having jurisdiction of the equitable action to stay proceedings in such action until the issue was tried in the action at law; and the court of equity might, in its discretion, stay the proceedings in equity. It would probably not be imperative on the court to do so, even in such case. The only other objection made to .the counterclaim is that it was not pleadable in this action. An examination of the complaint shows that the plaintiffs allege that they are the owners in fee, and in the actual possession, of said lands, and then allege facts showing that they would be entitled to a judgment against the defendant declaring them to be the owners of said land in fee, and barring the defendant from any claim to the same. Under their complaint, the defendant having appeared in the action, the plaintiffs would have been entitled to such larger relief as the facts alleged, if established on the trial, w7ould entitle them to, notwithstanding the specific prayer for a more limited relief in the complaint. Sec. 2886, R. S.; Edleman v. Kidd, 65 Wis. 18; Iowa Co. v. M. P. R. Co. 24 Wis. 93. Their complaint is a good complaint under sec. 3186, R. S. But it is said that no such relief is claimed in the prayer for relief in the complaint, and that it is clear, therefore, that the plaintiffs did not intend the complaint as an action under the statute, but that it was intended as an action to restrain the defendant from doing waste on the premises pending the prosecution of certain actions alleged to have been commenced by the defendant against one O’Deal, who, they allege, is a tenant of the plaintiffs. Possibly this is all the relief the plaintiffs intended to ask in said action, but, as such relief, upon a proper showing, might have been obtained by the plaintiffs by an application in one or all the suits commenced by defendant against O’Deal, and without instituting this action, the defendant had the right to suppose they — 684 — would claim, under their prayer for general relief, such relief as they were entitled to upon the facts stated in their complaint and established upon the trial. He had the right, therefore, to answer so as to defeat any such claim for relief, either by a denial of the facts stated in the complaint, or by a counterclaim asking affirmative relief against the plaintiffs which, if granted, would clearly defeat their, claim for any kind of relief against the defendant. But, admitting that the complaint of the plaintiffs would not have authorized the trial court to have granted them any other relief than that contained in the special prayer for relief, still we are of the opinion that the defendant had the right to put in issue by his answer both the possession and title of the plaintiffs, they having asserted that they had such possession and title in their complaint; and, having the right to put such possession and title in issue, he had also the right to claim such possession and title to be in himself, and to ask such affirmative relief, by way of counterclaim, upon the establishment of such right in himself, as the law authorizes. The plaintiffs having brought the defendant into a court of equity, and called upon that court to give them relief because they were the owners in fee and in actual possession of certain lands to which the defendant laid claim, he was clearly authorized to come into the same court, and defeat their right to relief by showing they had no title and no possession, and, having shown that such possession and title were in himself, obtain such affirmative relief as such title and possession would give him as against the plaintiffs. The learned counsel for the plaintiffs admit that, if the plaintiffs had-claimed relief under sec. 3186, R. S., it would have been competent for the defendant, by way of a counterclaim, to ask the same relief on his part. The fact that the plaintiffs did not claim the relief to which they would have been entitled upon the facts stated in their complaint, does not limit the defendant in his claim. The plaintiffs,. — 685 — by their complaint, make it necessary for the defendant, in order to defeat their action, to litigate with them all the facts they would have been compelled to litigate had the plaintiffs claimed the larger relief. There would seem, therefore, to be no good reason for holding that the defendant should not be entitled to the same relief in this case that he would have been entitled to in the other. The subject of the action of the plaintiffs in this case, as stated in their complaint, is their title and right of possession to the land in question; and the defendant’s counterclaim sets np the same subject of the action, viz., the title and possession to the same land. Ye think there can be no reasonable doubt as to the right of the defendant to set up the facts stated in his answer as a counterclaim in this action, under subd. 1, sec. 2656, R. S. Mulberger v. Koenig, 62 Wis. 558; Cornelius v. Kessel, 58 Wis. 237; Jarvis v. Peck, 19 Wis. 74. Treating the counterclaim as a sufficient cause of action in favor of the defendant against the plaintiffs, and as properly pleadable in this action, the court was right in overruling the motions of the plaintiffs for judgment upon the pleadings, as well as the motion to dismiss the action, including the counterclaim. There can be no doubt as to the plaintiff’s right to dismiss his own action, but this court has held that, when the defendant has properly pleaded a counterclaim against the plaintiff, the plaintiff cannot, by dismissing his action, prevent the defendant from insisting upon a trial of his counterclaim. Bertschy v. McLeod, 32 Wis. 205; Hutchinson v. Paige, 67 Wis. 206; McLeod v. Bertschy, 33 Wis. 176. We find no error in the record. By the Court.— The judgment of the circuit court is affirmed. The appellants moved for a rehearing, contending (1) that the counterclaim was insufficient because it did not state, as required by sec. 3186, R. S., that the plaintiffs were making — 686 — some claim to the land; and (2) that, having invoked the' aid of a court of equity for purely temporary relief, they have been deprived of their constitutional right of a trial by jury as to their legal rights in the land. The following opinion was filed May 20, 1890: Taylob, J. In the argument for a rehearing in this case by the appellants, it is urged that a rehearing should be had because it now appears that a material point was overlooked in determining the case on the first argument. Whether the learned counsel intends to say that the point now insisted upon by him as a reason for holding the counterclaim of the respondent insufficient as not stating facts sufficient to constitute a cause of action or counterclaim, was overlooked by this court or by the counsel upon the first argument, we are at a loss to determine; but, after looking into the brief of the learned counsel upon the argument of this case, we do not find that the point now raised by him was raised in the printed brief, and we have no recollection that he stated it in his oral argument. The point was not, however, overlooked by this court, as is evident from the opinion filed in the case. The defect which is now pointed out in the brief of the learned counsel was noticed and fully considered by this court; and, after due deliberation, we came to the conclusion that the defect was technical and unsubstantial, and that it would be very near senseless -to hold the counterclaim bad for lack of an allegation that the plaintiffs were making some claim to the lands described in the counterclaim, when the complaint of the plaintiffs in the action in which the counterclaim was pleaded expressly makes claim of title to the same lands, and we still adhere to that opinion. The other point made in the brief of the appellant is but a repetition of the argument made on the first hearing. We see no sufficient reason for granting a rehearing in the case. By the Court.— The motion for a rehearing is denied, with $25 costs.