#### Herman, Appellant, vs. Felthousen, imp., Respondent.

April *23*

May 13, 1902.

*Pleading: Joinder of causes of action: Foreclosure of mortgages: Priority of liens: Paramount title: Merger.*

1. The test of whether more than one cause of action is stated or attempted to he stated in a complaint is not whether there are different hinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication.

2. The complaint in an action to foreclose a mortgage, in addition to the usual averments, alleged that a prior mortgage had been given to one K. for the benefit of defendant F., who furnished the whole consideration, and that F. was the owner of said prior mortgage when, subsequently, the legal title to the land was conveyed to him in satisfaction of the mortgage debt. In addition to the usual relief, judgment was ashed that the K. mortgage be declared extinguished and that plaintiff’s mortgage be declared to be the first mortgage lien on the property. *Held,*that the allegations mentioned did not attempt to state a separate cause of action against F„ involving either a question of paramount title or a question of merger by implication, * but merely called for a determination, essential to complete relief, of a question of priority of liens, depending on whether or not the prior mortgage had in fact been paid as alleged.

Appeal from an order of tbe superior court of Milwaukee county: Obren T. Williams, Judge.

*Reversed.*

Action to foreclose a mortgage. Tbe complaint was in tbe ordinary form. It stated, among other things, that tbe mortgage was given by defendant Reigb March 2, 1896, to secure tbe payment of an indebtedness of $900 and interest, evidenced by a promissory note due three years after the date thereof; that tbe mortgage was so executed that it was entitled to record; that it was duly recorded; that it was subsequently assigned to plaintiff; that be was tbe owner thereof at tbe time of tbe commencement of tbe action; and that defendant Felthousen, when tbe action was commenced, was tbe owner of tbe fee title to tbe property. In addition to tbe *424allegations necessary to a canse of action to foreclose tbe mortgage tbe complaint contained allegations to this effect: December *11,*1895, prior to tbe making of tbe mortgage in suit, Reigb and wife placed a mortgage on tbe property described in tbe complaint in favor of Sanford Y. Kline, to secure payment of $4,000 in three years, with interest at tbe rate of seven per cent, per annum payable semi-annually. It was made for tbe benefit of tbe defendant *Barrent W. Felt-housen,*wbo furnished tbe entire consideration therefor. ' He was tbe owner thereof until tbe same was extinguished as hereinafter stated. Subsequent to tbe execution of said mortgage, tbe mortgaged premises were conveyed to one Herman W. Koehler, wbo thereafter conveyed the same to defendant *Felthousen*in satisfaction of tbe mortgage debt. Tbe prayer for judgment, in addition to tbe usual relief, asked that tbe Kline mortgage be declared extinguished, and that plaintiff’s mortgage be declared to be tbe first mortgage lien upon tbe. property affected thereby.

Defendant *Felthousen*demurred to tbe complaint upon tbe theory that tbe special allegations in regard to tbe $4,000 were intended by tbe pleader as a second cause of action against him alone. Tbe grounds of tbe demurrer were as follows: As to tbe second cause of action, so called, sufficient facts are not pleaded to constitute a cause of action. As to tbe complaint as a whole, several causes of action have been improperly joined therein. Tbe demurrer was sustained, and plaintiff appealed.

Eor tbe appellant there was a brief by *Hoyt & Olwell,*and oral argument by *L. A. Olwell.*

*Edgar L. Wood,*for tbe respondent.

Maeshalx, J.

Tbe complaint seems to present tbe ordinary case of a person seeking to foreclose a mortgage, and, as a necessary part of full relief, to1 have tbe status of the mortgage lien determined as regards hostile claims of prior*425ity.not based on paramount title. There is nothing in the form of the complaint to indicate that the purpose of the pleader was to state a cause of action to foreclose a mortgage and a separate cause of action for relief against the hostile claim of a prior mortgage. All the facts in regard to both mortgages are stated in form as constituting one cause of action, and appropriate relief is asked for upon the theory that appellant’s mortgage is unaffected by the ostensible prior mortgage. Respondent’s counsel viewed the complaint as if the pleader intended thereby to state two causes of action, and attacked it, first, because the cause of action, so called, as to respondent was incomplete, and second, because if respondent was wrong on that proposition, then two causes of action were improperly joined. Appellant’s counsel seem to have concurred in that view in the contest in the court below, and they adhere to that concession on this appeal. They insist that whether the court below held that the second cause of action, so called, was imperfectly stated, or to the contrary and that two causes of action were improperly joined, the decision is erroneous. Just how the trial court reasoned in reaching the conclusion which resulted in the order complained of does not appear.

Counsel for both sides, and the circuit court as well, misconceived the character of the complaint. That seems to have come about from an erroneous view of what may be legitimately included in a single cause of action in equity. The test to be applied in order to determine whether a complaint states more than one cause of action, is whether, looking at the whole pleading, there is more than one primary right presented thereby for vindication. There may he many minor subjects, and facts may be stated constituting indo-pendent grounds for relief, either as between the plaintiff and all the defendants, or the former and one of the latter, or between defendants, and there be still but a single primary purpose of the suit, with which all the other matters are so *426connected as to be reasonably considered germane thereto,— parts of one entire subject, presenting to' the court but one primary ground for invoking its jurisdiction. That was tim rule before the Code, and it was preserved thereby in unmistakable language, as this court has said on many occasions. *Bassett v.*Warner, 23 Wis. 673; *Gager v. Bank of*Edgerton, 101 Wis. 593, 77 N. W. 920; *Gager v.*Marsden, 101 Wis. 598, 77 N. W. 922; *Zinc C. Co. v. First Nat.*Bank, 103 Wis. 125, 79 N. W. 229. In the last case cited the rule is. stated thus:

> “The test of whether there is more than one cause of action stated or attempted to be stated in a complaint is not whether there are different kinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication.”

There is very little need for going outside the statutes to discover that such is the law.

> “The complaint shall contain ... a plain and concise statement of the facts constituting each cause of action.”' Sec. 2646, Stats. 1898.

> “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.” Sec. 2603.

Each defendant, in addition to taking issue with one or more of the allegations of the complaint by answer, may plead new matter constituting a defense or counterclaim to the plaintiff’s cause of action, even though that involves a controversy between defendants. Sec. 2655. Issues may be joined between defendants, if necessary for the trial of the matters so presented to the court, and the whole subject of the action, including all the incidental controversies, may be closed by a single decree, so framed as to give to the plaintiff and to each defendant his appropriate relief. Sec. 2883.

Applying the foregoing to the pleading before us it is read*427ily seen that it states but one canse of action, and that the demurrer was improperly sustained. It presented to the court for adjudication but one subject or primary right,— the right to enforce the mortgage security owned by plaintiff to its full extent. That object reached all persons so circumstanced as to be entitled to redeem from plaintiff’s mortgage) and all persons wrongfully claiming superior rights. The adjudication of such pretended superior rights was germane to the single purpose of the full enforcement of the plaintiff’s mortgage. The mere general allegation to the effect that defendants have or claim to have rights or interests .in the premises, but that such rights or interests, if any there be, are subject to the plaintiff’s mortgage, only reached interests entitling the possessors thereof to exercise the right of redemption. A prior incumbrancer, made a party defendant, is not put to his defense to maintain his right of priority by such general allegations. *Strobe v. Downer,*13 Wis. 10. He may properly assume that his position in that regard is not contested unless facts are spedficallv stated indicating to the contrary. Such facts, as to respondent, were set forth in the pleadings in question. Complete relief to appellant, as to the manifest single purpose of his suit, requires a determination of whether the $4,000 mortgage referred to in the complaint was in fact paid as alleged.

The pleading presents for consideration no question of paramount title, as counsel for respondent seems to suppose, citing *Hekla F. Ins. Co. v. Morrison,*56 Wis. 133, 14 N. W. 12, and similar authorities. There is no dispute here, rightly speaking, as to the title. Priority of liens on title does not involve questions of conflicting titles. Neither is there any question presented by the complaint as to merger by implication, as counsel for respondent seems to think, citing *Webb v. Meloy,*32 Wis. 319, and like authorities. The allegations of the complaint are to the effect that the legal title to the property was conveyed to respondent in payment and satis*428faction of tbe $4,000 mortgage. If that allegation is true, plaintiff is entitled to bave bis mortgage stand as a lien upon tbe property covered thereby tbe same as if tbe $4,000 mortgage never existed.

*By the Court.*— Tbe order appealed from is reversed, and tbe cause remanded for further proceedings according to law.