a defense coming within that definition. In cases where it is necessary to plead an equitable defense in order to make it available, such defense may be pleaded to bar the plaintiff's right of recovery, without asking affirmative relief, while in actions such as this, governed by section 1055, above set out, equitable defenses are available under the general denial. Under a statutory denial, any facts which show that, according to the principles of equity, as applied by courts of chancery, the plaintiff ought not to recover possession of the land in controversy, may be given in evidence to defeat a recovery. Sedg. & W. Tr. Title Land, §§ 477-488; Pom. Rem. §§ 90, 91, and notes; Hoppough v. Struble, 60 N. Y. 430; Cavalli v. Allen, 57 N. Y. 508; West v. West, 89 Ind. 529; Schenck v. Kelley, 88 Ind. 444; Berlin v. Oglesbee, 65 Ind. 308; Steeple v. Downing, 60 Ind. 478-481; Hogg v. Link, 90 Ind. 346.

There are cases which seem to lend some support to the view contended for by the appellant, to the effect that an equitable defense, predicated on a mistake in a written instrument, and other defenses of a like character, can only be made available as such by an answer or pleading in which affirmative relief is prayed for. Conger v. Parker, 29 Ind. 380; King v. Enterprise Ins. Co., 45 Ind. 43-59.

These cases, while bearing some analogy in principle, are not entirely applicable to the case under consideration. Moreover, it may be doubted whether the construction which was given the statute authorizing equitable defenses, in the cases cited, was not too strict to subserve the purposes of the code. Affirmative relief is attainable by a defendant in all proper cases, and, when derived, it can only be afforded through the medium of an answer or other pleading, in the nature of a cross-complaint, in which such relief is prayed for. Crecelius v. Mann, 84 Ind. 147; Emily v. Harding, 53 Ind. 102. But a defendant is not compelled to become an actor, and ask affirmative relief by way of counter-claim. He may rely upon the facts, as an equitable defense, to defeat his adversary's claim.

In respect to the first inquiry, we may say, if the facts upon which the appellee relied had been otherwise available as a defense, they were properly admitted under the general denial.

In respect to the second inquiry, counsel for appellee build an ingenious argument in support of the ruling of

the court below in admitting evidence to show a mistake in the deed from the appellant to Adams, upon the ancient common-law rule now embodied in section 1057 of the code, which requires the plaintiff in ejectment to recover on the strength of his own title, and not upon the want of title in the defendant. That the plaintiff in such an action must, as a general rule, show a legal title, with a present right of possession paramount to the title of the defendant, and that the latter may avail himself of any imperfection in the title of the former, or that he may, unless estopped, defeat the action, by proving a subsisting outstanding title in a third person with which the defendant is not connected, are well-settled and often reiterated general principles. These principles, however, all come short of the real emergency in the appellee's situation. No outstanding legal title having been made to appear, the question is, can he avail himself of an alleged outstanding equity in favor of an indifferent stranger, with whom he stands in no sort of legal privity? The outstanding equity in a third person which will afford a shelter for a defendant in possession, without title, against a legal title in the plaintiff, must be such an equity as the defendant would have the right, by making proper parties, to invoke the aid of a court of chancery to enforce in his favor. Unless he is so far connected with the equitable right of a third person, the defendant must leave the parties between whom the legal and equitable titles subsist to adjust their rights between themselves.

The doctrine which the authorities support is that an outstanding title with which the defendant is not connected, and through which he makes no claim, must, in order to be available to protect his possession, appear to be a present, subsisting, operative legal title, upon which the owner could sue and recover. Bennett v. Horr, 47 Mich. 221; S. C. 10 N. W. Rep. 347; Shields v. Hunt, 45 Tex. 424; McDonald v. Schneider, 27 Mo. 405; Sedg. & W. Tr. Title Land, § 831; Tyler, Ej. & Adv. Inj. 72.

So far as appears, Adams never set up any claim to the land in controversy under the deed in which the appellee was permitted to show a mistaken description. The grantee in that deed remained for more than 20 years, and still continues, satisfied with the description as it is. Since the appellee claims no right through the deed in question, he is

in no position to assert a mistake, and seek a correction of the deed, so long as the parties to the instrument are content with the description therein written. In all cases of mistake in written instruments, courts of equity will interpose their aid between original parties, or those claiming under them in privity, but on behalf of persons not thus connected, courts of chancery do not lend their aid. White v. Wilson, 6 Blackf. 448; Sample v. Rowe, 24 Ind. 208; Morris v. Stern, 80 Ind. 227.

The judgment is reversed with costs, with directions to the court below to sustain the motion for a new trial.1

1 Accord, on the point that an equitable defense may be set up as a pure defense, merely negativing the plaintiff's claim without entitling the defendant to affirmative relief. Dale v. Hunneman (1881), 12 Neb. 221.

DEWEY v. HOAG.

Supreme Court of New York. 1853.

15 Barbour, 365.

This was an action to recover the possession of the undivided third part of a lot of land formerly owned by Charles Dewey, deceased, late the husband of the plaintiff, of which the complaint alleged he died seised and possessed; the plaintiff claiming to be entitled to an undivided third of said lot, in virtue of her right of dower.

*

HAND, J.: It is insisted that the answer contains an equitable defense or counterclaim. I do not understand there is any equitable defense or counterclaim. I do not understand there is any equitable defense, simply as a defense in an action of ejectment. The effect of that might be to keep the legal title and the possession forever separate. Under the code as amended, it is said the action may be met by an equitable title of the defendant, and a claim for a conveyance of the legal estate. (Code, secs. 150, 274. Haire v. Baker, 1 Seld. 357.) The legislature may have intended, and probably did, to go to that extent; and though the practice will sometimes be embarrassing, and there may be some doubt as to final costs, in many

cases complete justice may be done in one suit. But if that is now the correct practice, to defeat a recovery the defendant must become an actor in respect to his claim; and his answer must contain all the elements of a bill for a specific performance; and he must ask and obtain affirmative relief. The judgment must be for the plaintiff, that he recover the land; or for the defendant, that the plaintiff convey to him, on such terms as the court shall adjudge. A mere judgment for the defendant that the plaintiff take nothing by his action, would not be consistent with the pleadings, for such an answer admits legal title in the plaintiff.1

1 Accord: Power v. Sla (1900), 24 Mont. 243; Freeman v. Brewster (1897), 70 Minn. 203.

In Missouri it seems to be the rule that defendant may or may not ask for affirmative relief, but in the former case the equitable defense converts the case into one in equity triable by the court, while in the latter case it still remains an action at law. O'Day v. Conn (1895), 131 Mo. 321; Swon v. Stevens (1897), 143 Mo. 384; Carter v. Prior (1883), 78 Mo. 222. See, however, Allen v. Logan (1888), 96 Mo. 591.

LAMM, J.

CHAPTER VI.

THE DEMURRER.1
1

SECTION 1. GENERAL PRINCIPLES.

HANSON v. NEAL.

Supreme Court of Missouri. 1908.

215 Missouri, 256.

Plaintiff, beneficiary under a deed of trust covering 1,360 acres of land, more or less, in Ripley county, Mo., and securing an indebtedness of between $2,000 and $3,000, on the 8th day of February, 1905, brought her suit in equity against A. J. O'Neal, sheriff and acting trustee making a sale under said deed of trust, and George A. Neal

1 THE CODE PROVISIONS ON THIS SUBJECT IN THE VARIOUS STATES ARE AS FOLLOWS:

Alaska. Carter's Ann. Codes, 1900, Code Civ. Pro., § 58.

"The defendant may demur to the complaint when it appears upon the face thereof, either First. That the court has no jurisdiction of the person of the defendant or the subject of the action; or, Second. That the plaintiff has no legal capacity to sue; or, Third. That there is another action pending between the same parties for the same cause; or, Fourth. That there is a defect of parties plaintiff or defendant; or, Fifth. That several causes of action have been improperly united; or, Sixth. That the complaint does not state facts sufficient to constitute a cause of action; or, Seventh. That the action has not been commenced within the time limited by this code."

Arizona. Rev. St., 1901, § 1351.

Identical with Alaska statute, with the exception that 7 reads: the cause of action is barred by limitation."

Arkansas. Kirby's Digest, 1904, § 6093.

"That

when it appears

Same as Alaska statute, omitting the fifth and seventh grounds, the sixth ground under the Alaska act becoming the fifth ground in this provision. California. Kerr's Codes, Civ. Proc., 1909, § 430. "The defendant may demur to the complaint upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4. That there is a defect or misjoinder of parties plaintiff or defendant; or 5. That several causes of action have been improperly united; or, 6. That the complaint does not state facts sufficient to constitute a cause of action; or, 7. That the complaint is ambiguous, unintelligible, or uncertain."