No. 2,274.

#### CATHERINE DOYLE, *et al.*Appellants, *v.*EDWARD FRANKLIN, *et al.*Respondents.

Ejectment. — Pleading.—Defendant can not be Enjoined fbom Claiming Title. — Judgment a Bab. — Tlie plaintiff in an action of ejectment can not ask that lie be adjudged tlie owner and put into possession, and that defendant be enj oined from claiming title to the land recovered. He must rely upon his judgment as a bar.

Idem. — Where the issue is whether defendant or plaintiff has the better title; a judgment obtained by the former would be conclusive upon the title, and operate as a bar in his favor.

*107Ejectment. — Bill to Quiet Title not an Equitable Defence. — A bill to quiet title filed by defendant in an action of ejectment is not an equitable defence to tbe plaintiff’s cause of action.

Pleading. — Mattebs of Defence. — Cbo'ss Complaint. — Where proper matters of defence are pleaded as such, they should only be regarded as matters of defence, notwithstanding a prayer for affirmative relief at the conclusion of the answer; matters of the cause of complaint must be separately stated as a cause of action against the plaintiff, and not as a defence to the plaintiff’s cause of action.

Idem. — A plaintiff need not reply to any affirmative matter set up in defence; or by way of avoidance or counter-claim.

Appeal from tbe District Court of tbe Twelfth District, City and County of San Francisco.

Tbe facts are stated in, tbe opinion.

*E. L. B. Brooks,*for Appellants,

Tbe Court below erred in refusing to allow plaintiffs to introduce testimony in support of tbe allegations of tbe complaint, and in granting defendants’ motion for judgment on tbe pleadings. Tbe Court was led into botb these errors by reason of a mistaken idea as to tbe theory of pleading, and by a misconception of Sees. 46 and 50 of tbe Practice Act. Sec. 46 of tbe Act provides that tbe answer of defendants shall contain * * *. Second, A statement of matter in avoidance — a counter claim * * * a subject matter of cross complaint. Sec. 50 provides that * * * when tbe answer

contains a cross complaint, tbe parties may answer or demur.

Tbe answer of defendants in this case contains a series of denials of tbe allegations in plaintiffs’ complaint, then sets up matter which, it is pretended, constituted a “further and separate answer” to the complaint, and finally set, up new matter as a “further and separate defense” to tbe complaint,

Tbe first of these last two answers is not a cross-complaint, requiring a reply. It is not pleaded as a cross-complaint.- Tbe answer does not state it to be a cross-complaint, but does expressly allege it to be a separate answer. *108
      *It is not good*in form as a cross-comjfiaint, it' merely states certain facts, and does not pray for relief.

Again, tbis answer is only an affirmative method of denying plaintiffs’ allegations, and is not new matter. *(Goddard*v. *Fulton,*21 Cal. 430.) The answer does not present a cross-complaint and did not require a reply. *(Uerold*v. *Smith,*34 Cal. 122; *Jones*y. *Jones,*38 Id. 584.)

*E. Ac Lawrence,*for ^Respondent.

Exception is taken on the ground that the words “cross complaint” are not added after “For a further and separate defence,” etc. Section 50 of the Practice Act provides that “when the answer contains a cross-complaint, the parties may answer or demur.”

Section 70 of the Practice Act provides that, “In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties,” and Section 71 provides as follows: “The Court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties.”

In *Ayers*v. *Bensley,*(32 Cal. 620), it was held that a defendant in an action of ejectment may file a bill under Section 254 of the Practice Act, to determine adverse claims.

Temple, J.,

delivered the opinion of the Court:

The complaint in this action avers that, on the 28th of April, 1865, plaintiffs were the owners and in the exclusive possession of the premises in controversy; that, on that day, the defendant (Franklin) commenced an action against certain parties to recover the property, but the plaintiffs in this action were not made defendants in that action, and were not served with summons, and had no notice in any way of the pending of the action until the issuance and service of a writ of possession under it; that the plaintiffs were ousted *109under that writ and Franklin put in possession, and is still in possession; that tbe plaintiffs do not claim under tbe defendants in tbe former action of ejectment, and tbe defendants in that suit were not tenants of plaintiff. Plaintiffs ask that tjhe judgment be declared null and void as against them; tbat they be adjudged tbe owners and have judgment for possession; tbat defendants be enjoined from asserting or maintaining said judgment against tbe plaintiffs, and during tbe pending of this suit until final judgment, be restrained from asserting or maintaining tbe judgment or writ against tbe plaintiffs.

Tbe separate answer of Franklin contains denials as to tbe ownership of plaintiffs, and as a separate defence, avers tbat defendant is owner and in possession; tbat plaintiffs set up some claim to tbe land, which claim be avers is null and void, and asks for a decree quieting bis title. He also shows, as a separate defence, tbat plaintiffs were parties to tbe former suit, and tbat tbe judgment is binding on them.

When tbe case was called for trial, defendant requested the-plaintiff to elect whether be would proceed upon bis complaint as in ejectment, or as a bill in equity, to set aside tbe judgment therein mentioned. Plaintiff elected to treat tbe complaint as a complaint in ejectment, and waived any claim to set aside tbe judgment of defendant against plaintiff set forth in tbe.complaint, and stated to tbe Court tbat be should offer no proofs on tbat branch of tbe case.

Tbe plaintiff then called a witness, and asked who was in possession of tbe premises at tbe time of tbe commencement of tbe action. Tbe question was objected to, on tbe ground tbat all tbe allegations in tbe defendant’s answer were admitted, and, under tbe pleadings, tbe plaintiff could not be allowed to offer any testimony in tbe case. Tbe objection was sustained, and tbe ruling duly excepted to. Tbe defendant, then, upon motion, took judgment upon the pleadings.

Tbe complaint does not show tbat tbe defendant ever recovered judgment against tbe plaintiffs. It avers tbat tbe defendant obtained possession through a judgment against *110other parties. The answer averred that the judgment was against the plaintiffs, and was therefore a bar. This left a plain issue of fact to be tried in this case. Of course, as a bill in equity, the complaint states no cause of action. It shows no right in plaintiff to have a judgment against other parties set aside. As a complaint in ejectment, it contained much immaterial matter, which, upon objection, would probably be stricken out, but still it contains all the material allegations of a complaint in ejectment.

It is claimed that the answer contains a cross-complaint which should have been answered by the plaintiff; and not being answered, is admitted. This cross-complaint is the averment that the defendant is the owner of the demanded premises and in possession, and that the plaintiff’s claim is a cloud upon his title. These averments are set up as a defence, and not as the foundation of a claim for affirmative relief against the plaintiff. They are all appropriately matters of defence, and, except as to the possession of the defendant, are all controverted by the positive averments of the complaint, and that fact, i. e., the defendant’s possession, is essential to the plaintiff’s case.

We do not deem it necessary now to inquire whether a bill to quiet title may be filed as a cross-complaint by the defendant in an action of ejectment. It certainly is not an equitable defence to the plaintiff’s cause of action. The plaintiff, in an action of ejectment, cannot ask that he be adjudged the owner and put into possession, and that the defendant be enjoined from claiming title to the land recovered. He must rely upon his judgment as a bar. Where the defendant claims to be the owner, the issue is whether plaintiff or defendant has the better title, and it seems reasonable to suppose that a judgment hr favor of the former should be as conclusive upon the title and give the same measure of relief as to the latter; that its effect would be simply a bar in favor of either.

But however this may be, where matters which are proper matters of defense are pleaded a- j such, we are clear that they should be regarded only as such, notwithstanding a prayer *111lor affirmative relief at tbe conclusion of tbe answer. Tbe matters of tbe cause of complaint must be separately stated as a cause of action against tbe plaintiff, and not as a defence to tbe plaintiff’s cause of action.

It lias been settled by tbe decisions of tbis Court, but is as clear from tbe Practice Act itself as any decision could make it, that tbe plaintiff need not reply to any affirmative matter set up in defence, or by way of avoidance or counter claim.

Judgment and order refused, and cause remanded.