to the subject of the action, may be in the nature of a cross bill under the old practice, but a substitute therefor, and the answer of the code, nevertheless. That would seem to be the intent of the framers of the code, and such was the holding in New York before the passage of the law (section 760, Code Civ. Proc.) providing for cross actions, and section 521, Code Civ. Proc., which provides that where the judgment may determine ultimate rights as between defendants, one who requires such determination must demand it in his answer, and must, at least 20 days before the trial, serve a copy of his answer upon the attorney for each of the defendants affected thereby. It is said in the note by the compilers of the code, that this provision was enacted to supply an omission to regulate procedure under section 1204, which is identical with section 2883 of our statutes, relating to the power of the court to settle ultimate rights between co-defendants, and render the proper administration of the law under it certain. The note states that without some provision regulating the practice, the administration of the remedies, under the section to which it refers, was difficult. That came from the fact that a person seeking relief against a co-defendant was entitled, by answer, to set forth all the facts requisite to entitle him to such relief, and was not required by statute to serve his answer upon the defendant affected thereby, and the courts were in conflict as to whether service was required independent of the statute. Bogardus v. Parker, 7 How. Prac. 305; Tracy v. Manufacturing Co., 1 E, D. Smith, 349. The reason given by the courts of some states having a code practice, for holding the cross bill of the old practice not done away with by such code, can hardly apply here any more than in New York, from whence our code was taken. Its framers intended to devise a perfect system that would vest in one court power to administer all the remedies, both at law and in equity, which formerly existed, to be worked out in one form of action and with one system of pleading. As said by Mr. Justice HERRICK, in New York Security & Trust Co. v. Saratoga Gas & Electric Light Co., supra: "While all remedies, both in law and equity, have been undoubtedly preserved, the method of procedure by which the jurisdiction shall be exercised and the remedies pursued have been entirely changed, and will now

be found in the Code of Civil Procedure and the rules of court."

It follows, without room for reasonable controversy, that the counter-claim of the code, in equitable actions, is a substitute for the cross bill of the former equity practice, where the affirmative relief sought by the defendant is against the plaintiff, and that the provision of law permitting defendants to litigate between themselves matters germane to the subject of the complaint, carries with it the right of the defendant seeking relief in that regard, to serve an answer in the action in the nature of a cross bill, setting up the facts and claiming such relief. Such an answer, however, is essentially a code pleading, and though the court may require it to be served on the defendant affected thereby, such service is not necessary unless so ordered, to preserve the right of the party to have the questions presented by such answer tried and settled by the decree, if the co-defendant affected is before the court.

It follows that a defendant in any case where the court has jurisdiction to grant him affirmative relief, may set up the facts entitling him thereto by answer in the nature of a cross bill, if he is not so circumstanced as to set up the same by way of counterclaim. It is also the proper practice to serve the answer on the defendant affected thereby, and proper for the court, in the exercise of its inherent power, to require such service to be made, and to cause the issues to be narrowed and sharply presented for adjudication, by requiring the defendant, against whom relief is sought, to plead to the answer setting up the cross demand. Such was the practice in this case, and the fact that the court saw fit to designate the pleading of the defendant Kaiser a cross bill, or cross complaint, did not change it. The pleading was authorized by the code, it was really the substitute for the cross bill under the old practice, and whether it be called a cross complaint, or cross bill, or answer in the nature of a cross bill, makes very little difference.

It is considered that the matter contained in the answer was germane to the subject of the action, hence properly pleadable, and it remains to be seen what the effect is of a dismissal of a complaint upon the answer of a defendant seeking to obtain relief against a co-defendant, for matters

not pleadable themselves as a cause of action in equity. There being no statute on the subject, providing for retaining the case in such a situation for the purpose of settling the ultimate rights of co-defendants between themselves, the proper practice to be followed is that which formerly existed, that is, the answer of the defendant falls with the complaint and the entire action is at an end. Under the old practice, though the court would retain a case to determine the questions raised by the cross bill claiming affirmative relief as between the defendant and the plaintiff, where the cause of action in such a bill was equitable in its nature, the rule was otherwise where the relief sought thereby could be obtained by legal remedies. The reason for that rule applies with greater force as between co-defendants. Here the relief sought by defendant Kaiser's answer was an abatement of the debt due to his grantor by way of an assessment of damages for breach of the covenants in his deed. That was a matter for which there was an adequate remedy at law, and could not be settled in an equitable action other than as auxiliary to an equitable action to which it was germane, or in some way connected, so as to bring the defendant before the court as a party on that account. So, as the case stood before the trial court, the dismissal of the complaint for failure to state a cause of action in equity, properly carried the answer of defendant Kaiser with it on the demurrer of the defendant Scribner. Nevertheless, as we hold that the demurrer to the complaint was improperly sustained, such order on plaintiff's appeal must be reversed, and the order overruling the demurrer to the answer sustained. BY THE COURT. So ordered, and that the cause be remanded for further proceedings according to law.1

1 See Joyce v. Growney (1899), 154 Mo. 253, 264, for a brief expression of somewhat similar views, the court emphasizing the limitations under which relief may be had against a co-defendant in the following language: "The statute limits the new matter that may be pleaded in the answer to that which is a defense to the plaintiff's suit or else a counter-claim against him; it does not authorize a counter-claim or an equitable cross action of one defendant against another except as one defendant may be entitled to such relief against another as will enable him to make good his defense to the plaintiff's suit. Whatever affirmative relief one defendant may have as against another must be of a character responsive to the plaintiff's suit.” In Hill v. Frink (1895), 11 Wash. 562, the name cross-complaint" was not objected to, but its dependent nature, as responsive to the case made by the plaintiff's complaint, was strongly insisted upon. The court said: "While it is true that the court may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves

(Code Proc. 407), and that one defendant may, by cross-complaint, in a proper case, seek affirmative relief from a co-defendant, it is also true that the cause of action stated in the cross-complaint must arise out of, or relate to, the subject matter of the original action. Bliss, Code Pleading (3rd Ed.), § 390, and cases cited."

Statutes expressly authorize cross-complaints against co-defendants or third parties, in several states. Arkansas, Kirby's Digest, 1904, § 6088; California, Code Civ. Pro., § 442; Idaho, Rev. Codes, 1908, § 4188; Iowa, Code, 1897, 3574; Kentucky, Code, 1895, § 96, sub-div. 3; Utah, Comp. Laws, 1907, § 2974.

SECTION 7. EQUITABLE DEFENSES.

EAST v. PEDEN.

Supreme Court of Indiana. 1886.

108 Indiana, 92.

MITCHELL, J. The questions presented for decision in this case arise upon the following facts: On the first day of April, 1855, Thomas Shepherd died intestate, seized of certain real estate in Greene county, leaving as his only heirs his widow, Rebecca Shepherd, and Lealdus Shepherd, a son. The widow and son inherited the land in equal moities, as tenants in common. On the twenty-fourth day of August, 1857, while yet the widow of her deceased husband, Rebecca. Shepherd made a conveyance by which she intended to convey to Eli Adams her interest in the real estate which she inherited from her husband, but which conveyance, through an alleged mistake in the description, did not embrace any of the lands in controversy. This deed recites that it was made upon a consideration of $200. It was duly recorded. On August 30, 1857, six days after the deed was made, Rebecca Shepherd intermarried with John East, and, remaining in possession meanwhile, on the nineteenth day of January, 1865, during her second marriage, she and her husband joined in a quitclaim deed for her interest in the land to Hughes East, who in the same year conveyed to the appellee. From that time forth the appellee has been in possession.

Treating the conveyance made during her second marriage as void, within the prohibition of the statute concerning the alienation of real estate held in virtue of a

previous marriage during a second or subsequent marriage, Rebecca East commenced this suit against the appellee in the Greene circuit court, to recover possession of the undivided one-half of certain described lands. The complaint was in the usual form for the recovery of real estate, and the issue was made by an answer of general denial.

That the appellee took no title through the deed made to Hughes East during the appellant's second marriage is conceded on all hands. He had judgment below, nevertheless, upon the theory that it was competent for him to show title out of the plaintiff, by proving that Adams was the equitable owner of the land in controversy through the deed made in 1857, by which it was claimed the appellant intended to convey her interest to him notwithstanding the land in dispute was not described in that deed.

By exceptions to the admission of evidence, and otherwise, the questions presented for decision may be comprehended under the following propositions: (1) Admitting the validity of the defense upon which the appellee prevailed in the court below, was it competent to make such defense under the general denial, without an answer or other pleading asking affirmative relief? (2) The appellee being in no wise in privity with, and having asserted no claim under, the deed to Adams, in which the alleged misdescription was found, was he in a situation to show the mistake, and avail himself of that deed as a defense, by any method of pleading which he might have resorted to?

Respecting pleadings in actions for the recovery of possession of real property, section 1055, Rev. St. 1881, enacts that "the answer of the defendant may contain a denial of each material statement or allegation in the complaint, under which denial the defendant shall be permitted to give in evidence every defense to the action that he may have, either legal or equitable." As to what constitutes an equitable defense, the better view, and that supported by the weight of authority, seems to be that any state of facts which would entitle the defendant, in a proper case, to the reformation of an instrument, or which would, under the former practice, if set up in a bill for that purpose, invoke the aid of a court of chancery for relief against the claim or title put forward by the plaintiff, would be