, 1877-05-05
OPINION.

10 the DEFENDANTS answer, and are ngued
and submitted together In the first, on
the theory that two supposed defenses
are inconsistent he moved that the de.
iendant be compelled to elect on which
defense he will stand, "whether on his
legal title in tee or his alleged equitable
defense On the second, he moves, lst,
to strike out certain supposed equitable
defense on the ground that 1t is irree-
want and redundant and improperly
pleaded and cannot AS such abe pleaded
or ahjudcated in this action" and, 2d'
10 strike out the last seven lines Of para
graph two Of the answer, "because the
same does not state the nature OF SAID
contract, or the nature or duration oi
said license and is ministerial matter as
pleaded"
This action is brought TO recover from
defendant the possession of certain real
property 1t is instituted under SEC
ton 486 of the Civil Practice Act, which
provi es that "any person having valid
subssting interest in real property and
right TO the possession thereof, may
recover the same" 10y such an action as
the present. The complaint AYERS owner
ship in fee in plaintiff. of tract of land
in possession OF defendant, described as
"being the donation claim of Urban H.
fIicks, to whom patent from the United
States, issued on the 27th day of Septcm-
her, 1865" &c., and right to possession.
The answer, IN the first paragraph, denies
the ownership Of plaintiff and his right
to possession; in the second, sets up II
legal title and right of possession in de-
fendant to half the premises, and n legal
title in one Hubbard and, under contract
Dfpurchase and license from Hubbard, a
right to the possession of the other half;
In the third, it AYERS that plaintiff claims
by virtue ot certain deed. at the time
Of the making and delivery whereof de
fendant was in "aciual, and exclusive
possession, occupation and use " thereof
claiming the same under title adverse
TO that Of" plaintiff S alleged grantors I;
and in the fourth. it states "a mass ot
facts which defendant claims show in
him an equitable title and right 10 pos
session of the premises. The objections
made to a part of the second paragraph
of the answer is not well taken. An o..
cupation by permission of tin real owner
IS good defense in an action Of tins
character. The license once given, is
presumed to continue ia existence in the
absence, aught to the contrary.
The objection made to the fourth para
graph of the answer is not well taken, if
under the rules of pleading in this Ter
ritory an equitable defense can be inter
posed to complaint setting up what is
denominated legal cause Of action.
The adjudication, then, whether it can
nr cannot, is necessary to Il disposition of
either of these motions In regard to
the first, if an equitable defense be no
defense, mo- election exists to he enforced
In regard to the second, il an equitable
defense lie not defense, no doubt the 4th
paragraph of the answer should br
stricken out The two motions appear
incongru0us AS emanating from the same
party hut it is understood that the
second is an after thought and is filed, ar.
gued and submitted by consent Of the
opposite party and leave Of the Court,
Tor tue purpose Of more fully presenting
the very grave questions involved,
The plaintiff contends, in his argu-
rnent against the equitable defense to the
legal demand. that the statutes now in
force in this Territory do not authorize
the mingling together and exercise of
common law and chancery Jurisdictions
in the same proceeding-said jurisdic.
lions must be exercised separately. Our
statute authorizes but one form of ac-
tion-that is, but one form of pIcadings;
but il does authorize one uniform course
Of proceeding in all cases All listinc-
,ions between law AMI equity are not