Burr v. C. C. Thompson & Walkup Co.

Taylob, J. Upon a careful examination of the facts stated in the answer, it seems evident that all the rights of the defendant can be adjudicated and protected without the presence of the Fergusons and Lewis as parties. If the-facts stated in the answer are true, then the defendant has a good title to the whole of the logs in question as against, the plaintiff, and that is all that is necessary for it to show in this action; and if the answer is true, then the Fergusons and Lewis have no interest in said logs as against the defendant. If it be urged that it may be necessary, under some aspect of the defense, to show that the Fergu-sons and Lewis have paid the purchase money for the land to the plaintiff, in order to make the title of the defendant, good, that fact may be shown as well without their being parties to the action as otherwise. So may the fact be shown, as alleged in the answer, that they had the right to cut and sell the. logs as against the claim of the plaintiff. [233] We see nothing in the facts stated in the answer which renders it necessary to bring in the parties named as parties to the action. The order denying the motion was rightfully made and must be affirmed. Upon what ground the demurrer to the answer was sustained does not appear, unless it be upon the ground that, as the defendant had 'stated that it pleaded it as a defense and a counterclaim, the demurrer ought to be sustained because it failed in stating facts constituting a counterclaim. It is evident that in the sense in which the word “ counterclaim” is used in the statute, the answer does not state facts amounting to a counterclaim. There is no fact stated in the answer which entitles the defendant to any affirmative relief against the plaintiff, but on the contrary all the facts stated are defensive matters, and if proved would entitle the defendant to have the plaintiffs complaint dismissed as asked for in the prayer of the answer. It seems to be urged by the learned counsel for the plaintiff that the demurrer should be sustained because the defendant has misnamed its answer by calling it a counterclaim, when in fact it is merely a defense. We do npt think the mere fact that the answer was improperly named is the subject of a demurrer. We do not think, if in an action on a promissory note the defendant should commence his answer by saying that, by way of counterclaim, he alleges that on a certain day before the action was commenced he had fully paid to the plaintiff the amount due on the note, the pleading should be held not good as not stating a counterclaim, when it is apparent on its face that it states a good defense to the action. Calling it a counterclaim should clearly be treated as an immaterial statement in the answer. If, as would seem to be the idea of the learned counsel for the plaintiff, the pleading can stand as a good defense to the action, notwithstanding the demurrer is sustained because it is not a counterclaim, then [234] there would seem to be no good reason for sustaining the demurrer. We think that, although the pleader has called the answer a defense and a counterclaim, it is in fact only a defense to the plaintiff’s action, and if it states facts constituting a defense then it was error to sustain the demurrer. It is insisted by the learned counsel for the plaintiff that the answer is not demurred to because it does not state facts constituting a defense to the plaintiff’s action, and he declines to enter into an argument upon that point; but, as we think the demurrer ■ should have been overruled if a good defense is pleaded, notwithstanding it was1 improperly named a defense and countei’claim, we must consider the pleading as a defense, and see if it contains any new matter constituting a defense, within the meaning of the Code. In examining the answer it must be admitted that some of the facts stated may have been admissible under a. general or special denial, and do not, therefore, constitute a defense, within the meaning of the Code. Probably the statement made in the answer that the plaintiff authorized the Fer-gusons and Lewis to cut and sell the timber on the land in which he claims an undivided interest; and that the defendant bought the logs from them or their vendee, could be shown as a defense to the action without pleading it. But there are other facts stated in the answer which may be an equitable defense for the defendant to the plaintiff’s action which could not have been given in evidence without pleading them as a defense. So far as the defendant seeks to defend against the plaintiff’s action on the ground that the plaintiff’s interest in the real estate from which the logs were taken was simply a' mortgage interest, and that the persons who cut the logs and sold them to it or its grantor were the equitable mortgagors a)nd in possession with right, as such, to cut and remove the timber so long as the security of the plaintiff was not materially injured thereby, such defense was and is clearly an equitable de [235] fense. In this case, upon tbe facts stated in tbe answer, tbe legal title to tbe land upon -\yhich tbe logs were cut never was in tbe defendant. Tbe legal title to a balf interest is in tbe plaintiff by virtue of a deed from a third person, from whom tbe defendant and those under whom it claims have derived no legal title, and as to that balf, therefore, the defendant and tbe Fergusons and Lewis are not in a position to attack tbe legal, right of tbe plaintiff, except by a proceeding in equity to show that tbe plaintiff bolds tbe half interest as mortgagee in trust for them and those claiming under them. In tbe cases in which this court has held that a deed absolute on its face may, in an action at law in ejectment, and without pleading tbe fact as an equitable defense, show that such deed is a mortgage and so defeat tbe plaintiff’s action, tbe parties who were permitted to show tbe fact were parties from whom tbe other party has taken tbe deed which is shown to be a mortgage, and so, tbe mortgagee not having a conveyance in law of tbe fee of tbe land, tbe fee remains in tbe grantor and mortgagor ; but in tbe case at bar if it be shown that tbe plaintiff’s interest is in fact in equity only a mortgage interest, still tbe legal title is in him, and not in tbe defendant or its grantors, so that if this were an action of ejectment for an undivided interest in tbe land, and tbe defendant claimed tbe interest was a mortgage interest and that tbe mortgage bad been paid, under tbe rules of this court tbe facts must have been stated as a counterclaim, and relief asked that tbe plaintiff be compelled to convey tbe land to tbe defendant in order to put tbe legal title in it, whereas, if it bad itself given tbe deed which was declared a mortgage, tbe legal title remained m it, and there would be no necessity of a deed from the mortgagee to perfect its legal title to tbe land. That a person taking tbe legal title to real estate from a third person may in equity be a mortgagee to some person [236] for wbose benefit the title was conveyed to him, has been frequently decided by this and other courts; and that the facts which constitute such person the equitable mortgagee may be shown by parol evidence is also equally well settled. Starks v. Redfield, 52 Wis. 349; Sweet v. Mitchell, 15 Wis. 641; Spencer v. Fredendall, 15 Wis. 666; Wilcox v. Bates, 26 Wis. 465; Carr v. Carr, 52 N. Y. 251. Under the answer in this case, the defendant would have the right to show that the plaintiff’s claim was an equitable mortgage as against the Eergusons and Lewis, under whom the defendant claims, and that it was paid in full, or, if only paid in part, to show how much had been paid and, if it could, to show that the unsold timber on the undivided half of the land, together with the land, was ample security for the balance due upon his mortgage, and so make its title to the logs cut and removed by the equitable mortgagors good in itself. These matters, we think, constituted a good equitable defense, in whole or in part, to the plaintiff’s action. As the defendant has no right to have the title of the lands conveyed to it, there is no reason for asking for affirmative relief. By the Cov/rt.— The order denying the motion of the defendant to make new parties is affirmed, and the order sustaining the demurrer to the answer of the defendant is reversed, each party to pay his own costs except that the respondent pay the costs of the clerk of this court; and the case is remanded for further proceedings.