Jarvis v. Peck

*75 By the Court, Dixon, O. J.

'We think that the answer sets up a counter-claim to the whole land in controversy, which, not having been replied to, is admitted by the plaintiff, and that no proofs could have been received. The plaintiff sues to quiet title under section 29, chapter 141, R. S., or chapter 22, Laws of 1859, and alleges possession and title in himself by virtue of a tax deed issued for the nonpayment of taxes assessed in the year 1855. The defendants (the defendant Anna claiming no interest except as the wife of the defendant Jared) answer averring possession and title in the defendant Jared, by virtue of a tax deed duly executed and delivered to him upon a sale of the same lots for the taxes assessed thereon for the year 1858. Of course a valid sale and conveyance under a junior assessment cut off all former titles or liens. The defendants likewise demand affirmative relief -of the same nature as that demanded in the complaint. This is a, counter-claim. R. S., ch. 125, sec. 11. It is a several claim existing in favor of the defendant Jared against the plaintiff, not demanding the interention of other parties. It is capable of forming the ground for a separate judgment against the plaintiff, under section 26, chapter 132, R. S. It is connected with the subject of the action. It does not deny the plaintiff’s demand, except so far as it is founded upon his possession, but seeks to extinguish it by an equitable cross action. It is a claim which, of itself, would constitute a cause of action in favor of the defendant Jared against the plaintiff, in a separate suit. See 2 Whit. Pr. (ed. 1863), sec. 180, (a) and (d) and cases cited.

If it be urged that the question of actual possession was in issue, and the plaintiff had the right to go into proof upon that, the reply is, that the counter-claim is nevertheless good under sec. 35, chap. 22, Laws of 1859, above referred to. By that section the grantee in a tax deed may sue at any time within three years after its date, without being himself in possession ; so that if it be conceded that the plaintiff was possessed in fact, still the answer contains a good cause of action, *76 which, being admitted, renders a resort to proof as to the possession. quite immaterial.

But the judgment is a judgment dismissing the plaintiff’s action, instead of a judgment for the defendants upon the counter-claim. The plaintiff appeals. It is obvious that he cannot complain of a judgment more favorable to him than the strict rules of law require. The defendants do not appeal. If they choose to acquiesce we see no reason why the judgment should be disturbed.

Judgment affirmed.