By the Court, Sanderson, J.:
The demurrers to the defendants’ answers, so far as they allege the pendency of another action between the same parties for the same cause, were properly sustained. In order to render that defense available, it must appear that the causes of action and the parties (the plaintiffs at least) are the same in both actions; neither of which, in our judgment, can be affirmed of the present case, and of this a bare statement of the facts upon which the question is presented, would seem to be conclusive. This action is brought by Ayres alone against Bensley, Dumarthery, Compton, Mason, and the City and County of San Francisco, under the two hundred and fifty-fourth section of the Practice Act, to quiet title to a certain tract of land described in the complaint, of which the plaintiff alleges himself to be in possession. The wrong and injury of which the plaintiff complains, is that the defendants have falsely pretended and given out in speeches that he (the plaintiff) has no valid title thereto, and that the legal title is in themselves and that they are entitled to the possession thereof, and that thereby they have cast a cloud upon his title and caused many persons to believe it to be worthless, and thereby greatly impaired its market value. The relief which he seeks is a decree adjudging his title to be superior and paramount to the pretended titles of the defendants, and that he may be quieted in the possession of said land and the defendants enjoined from asserting any title to the same hereafter.
The action pleaded in abatement is an action of ejectment brought by the defendants Bensley and Compton against the plaintiff Ayres, and divers other persons not named, for the possession of the land in question. The wrong complained of [629]*629is that Ayres and his co-defendants “ unlawfully and wrongfully, with force and arms, entered into and upon said premises, and ousted and ejected the plaintiffs therefrom.” The relief asked is a judgment awarding to the plaintiffs the possession of the land. In his answer, Ayres denied the averments of the complaint, and alleged title in himself, but asked no affirmative relief.
That these causes of action are essentially different would seem to be obvious upon bare inspection. The wrongs complained of and the redress sought are in no respect alike. The gravamen of the latter is a wrongful entry and ouster; that of the former is a slander of plaintiffs’ title. Testimony in support of one would not support the other, except so far as title might become the subject of inquiry in the ejectment suit which might or might not occur. Moreover, the objects of the two actions are entirely different, notwithstanding the main point in dispute may be the same; one attainable in a Court of law and the other in a Court of equity.
These obvious distinctions between the two cases do not seem to be denied by counsel for appellants; but it is claimed that Ayres could have obtained in the first suit all that he seeks in this, under our system of practice, and that he ought therefore to have brought forward in his answer in that case the matters contained in his complaint in this, under penalty of sacrificing all his rights in the premises. Conceding that he might have adopted that course, yet he did not, and we know of no rule of law making it obligatory. Doubtless he was bound to bring forward all matters of a strictly defensive character which then existed in his favor, or be thereafter precluded ; but this cannot be affirmed of other matters constituting a cause of action in his favor. Although under our system a defendant may set out new matter in his answer constituting a counterclaim, and may have any affirmative relief to which he may be entitled, (Prac. Act, Secs. 46 and 199,) it does not follow therefrom that he is compelled to do so. Such a rule might become most mischievous in its results, for he might be wholly unprepared to make out his case for the [630]*630want of testimony which at another time might be at his command. But it is a sufficient answer to this point to say that although the statute provides that a defendant may set out a cause of action in his favor and obtain affirmative relief, it nowhere provides that he shall do it, under penalty of a forfeiture of his claim, and he may therefore do it or not at his option.
But if this objection could be overcome, a conclusive reply to the defense in question is found in the fact that the parties are not only not the same, but they do not, so far as they are the same, stand in the same relation to each other. The plaintiff in this suit is a defendant in the other, and vice versa. The foundation upon which the defense in question rests is the abhorrence which the law entertains for a multiplicity of actions. The law does not permit a party to prosecute two actions for the same cause at the same time, because the second suit is not only unnecessary, so far as the enforcement of his rights are concerned, but annoys and harasses the defendant without cause. (Bacon’s Abridgement—Abatement —note m.) The reason of this rule, however, can have no application except where the plaintiff in both actions is the same person, hence the rule itself can have no application where such is not the case. The defense of a prior lis pendens applies exclusively to the case where the plaintiff in both suits is the same person and both are commenced by himself, and not to cases where there are cross suits by a plaintiff in one suit who is defendant in the other (Certain Logs of Mahogany, 2 Sumner’s Reps. 593; Wadleigh v. Veazie, 3 Sumner’s Reps. 165; O’ Connor v. Blake, 29 Cal. 312,) which is an obvious deduction from the reason upon which such a defense is founded. Where there are merely cross suits between parties, it cannot, in any'just sense, be said that either is prosecuting two actions against the other within the rule in question.
Under the view which we take of this case upon the merits, there are certain points which have been elaborately argued, by counsel upon both sides, which we deem it unne[631]*631cessary to discuss. Upon the points made against the deed of the 3d of June, 1851, from Roberts and Lange to Crowell, we shall express no opinion ; nor shall we express any opinion as to the possessory right or title of the defendants, so far as it may depend upon the steps taken by Farrington, in August, 1852, to secure a possessory right to what is called the “Farrington Claim,” under the provisions of the Act of the Legislature of the 22d of April, 1852, entitled “An Act prescribing the mode of maintaining and defending possessory actions on public lands in this State;” nor so far as they may depend upon the erection of the “ skeleton fence,” in August, 1853, or the “substantial fence,” erected in January, 1854. But' for the purposes of our decision we shall assume that the deed from Roberts and Lange to Crowell embraced the land in controversy, and that the defendants acquired no rights under the statute in question, or the “skeleton fence” of 1853, or the “ substantial fence ” of 1854. Of this summary mode of disposing of all these questions the plaintiff (against whose title we decide) cannot complain, for upon all of them we assume his position as the correct one.
Thus stripped, the case is reduced to a simple question of prior possession at common law, under color of title, where there is no inclosure; and the law of that question was elaborately considered in the case of Hicks v. Coleman, 25 Cal. 122, and we do not propose to go over the ground again.
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By the Court, Sanderson, J.:
The demurrers to the defendants’ answers, so far as they allege the pendency of another action between the same parties for the same cause, were properly sustained. In order to render that defense available, it must appear that the causes of action and the parties (the plaintiffs at least) are the same in both actions; neither of which, in our judgment, can be affirmed of the present case, and of this a bare statement of the facts upon which the question is presented, would seem to be conclusive. This action is brought by Ayres alone against Bensley, Dumarthery, Compton, Mason, and the City and County of San Francisco, under the two hundred and fifty-fourth section of the Practice Act, to quiet title to a certain tract of land described in the complaint, of which the plaintiff alleges himself to be in possession. The wrong and injury of which the plaintiff complains, is that the defendants have falsely pretended and given out in speeches that he (the plaintiff) has no valid title thereto, and that the legal title is in themselves and that they are entitled to the possession thereof, and that thereby they have cast a cloud upon his title and caused many persons to believe it to be worthless, and thereby greatly impaired its market value. The relief which he seeks is a decree adjudging his title to be superior and paramount to the pretended titles of the defendants, and that he may be quieted in the possession of said land and the defendants enjoined from asserting any title to the same hereafter.
The action pleaded in abatement is an action of ejectment brought by the defendants Bensley and Compton against the plaintiff Ayres, and divers other persons not named, for the possession of the land in question. The wrong complained of [629]*629is that Ayres and his co-defendants “ unlawfully and wrongfully, with force and arms, entered into and upon said premises, and ousted and ejected the plaintiffs therefrom.” The relief asked is a judgment awarding to the plaintiffs the possession of the land. In his answer, Ayres denied the averments of the complaint, and alleged title in himself, but asked no affirmative relief.
That these causes of action are essentially different would seem to be obvious upon bare inspection. The wrongs complained of and the redress sought are in no respect alike. The gravamen of the latter is a wrongful entry and ouster; that of the former is a slander of plaintiffs’ title. Testimony in support of one would not support the other, except so far as title might become the subject of inquiry in the ejectment suit which might or might not occur. Moreover, the objects of the two actions are entirely different, notwithstanding the main point in dispute may be the same; one attainable in a Court of law and the other in a Court of equity.
These obvious distinctions between the two cases do not seem to be denied by counsel for appellants; but it is claimed that Ayres could have obtained in the first suit all that he seeks in this, under our system of practice, and that he ought therefore to have brought forward in his answer in that case the matters contained in his complaint in this, under penalty of sacrificing all his rights in the premises. Conceding that he might have adopted that course, yet he did not, and we know of no rule of law making it obligatory. Doubtless he was bound to bring forward all matters of a strictly defensive character which then existed in his favor, or be thereafter precluded ; but this cannot be affirmed of other matters constituting a cause of action in his favor. Although under our system a defendant may set out new matter in his answer constituting a counterclaim, and may have any affirmative relief to which he may be entitled, (Prac. Act, Secs. 46 and 199,) it does not follow therefrom that he is compelled to do so. Such a rule might become most mischievous in its results, for he might be wholly unprepared to make out his case for the [630]*630want of testimony which at another time might be at his command. But it is a sufficient answer to this point to say that although the statute provides that a defendant may set out a cause of action in his favor and obtain affirmative relief, it nowhere provides that he shall do it, under penalty of a forfeiture of his claim, and he may therefore do it or not at his option.
But if this objection could be overcome, a conclusive reply to the defense in question is found in the fact that the parties are not only not the same, but they do not, so far as they are the same, stand in the same relation to each other. The plaintiff in this suit is a defendant in the other, and vice versa. The foundation upon which the defense in question rests is the abhorrence which the law entertains for a multiplicity of actions. The law does not permit a party to prosecute two actions for the same cause at the same time, because the second suit is not only unnecessary, so far as the enforcement of his rights are concerned, but annoys and harasses the defendant without cause. (Bacon’s Abridgement—Abatement —note m.) The reason of this rule, however, can have no application except where the plaintiff in both actions is the same person, hence the rule itself can have no application where such is not the case. The defense of a prior lis pendens applies exclusively to the case where the plaintiff in both suits is the same person and both are commenced by himself, and not to cases where there are cross suits by a plaintiff in one suit who is defendant in the other (Certain Logs of Mahogany, 2 Sumner’s Reps. 593; Wadleigh v. Veazie, 3 Sumner’s Reps. 165; O’ Connor v. Blake, 29 Cal. 312,) which is an obvious deduction from the reason upon which such a defense is founded. Where there are merely cross suits between parties, it cannot, in any'just sense, be said that either is prosecuting two actions against the other within the rule in question.
Under the view which we take of this case upon the merits, there are certain points which have been elaborately argued, by counsel upon both sides, which we deem it unne[631]*631cessary to discuss. Upon the points made against the deed of the 3d of June, 1851, from Roberts and Lange to Crowell, we shall express no opinion ; nor shall we express any opinion as to the possessory right or title of the defendants, so far as it may depend upon the steps taken by Farrington, in August, 1852, to secure a possessory right to what is called the “Farrington Claim,” under the provisions of the Act of the Legislature of the 22d of April, 1852, entitled “An Act prescribing the mode of maintaining and defending possessory actions on public lands in this State;” nor so far as they may depend upon the erection of the “ skeleton fence,” in August, 1853, or the “substantial fence,” erected in January, 1854. But' for the purposes of our decision we shall assume that the deed from Roberts and Lange to Crowell embraced the land in controversy, and that the defendants acquired no rights under the statute in question, or the “skeleton fence” of 1853, or the “ substantial fence ” of 1854. Of this summary mode of disposing of all these questions the plaintiff (against whose title we decide) cannot complain, for upon all of them we assume his position as the correct one.
Thus stripped, the case is reduced to a simple question of prior possession at common law, under color of title, where there is no inclosure; and the law of that question was elaborately considered in the case of Hicks v. Coleman, 25 Cal. 122, and we do not propose to go over the ground again. In that case we held that a party who enters into the actual possession of a portion of a tract of land, claiming the whole, under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual inclosure, but acquires possession to the entire tract, if it was not in the adverse possession of any other person at the time of his entry; and that such person, in an action to recover possession of the land, will prevail against one who enters subsequently upon the uninclosed part, showing color of title only. All we have to do is to apply the principles of that case to the facts of this.
It apears from the finding that Crowell was the first person, [632]*632under whom the plaintiff claims, in the actual possession of any part of the land. He entered on or about the 2d day of August, 1853, under a deed from Roberts and Lange, with specific boundaries, including the land in question. The 2d day of August, 1853, then, is to be taken as the date from which the plaintiff’s possession commenced.
On the 4th day of November, 1852, no one being in the adverse possession of the land in controversy, Bellows and Webster entered into the possession of what is called the “ Farrington Claim,” which also includes the land in controversy, under a deed to an undivided half thereof from Farrington and Ludlum, and a lease to the other half from the same parties, and they or their grantees, terminating in the defendants, have been in possession, except when they have been interrupted, until the present time. The 4th day of November, 1852, then, is to be taken as the date at which the defendants’ possession commenced. Thus it appears that the prior possession is in the defendants, and hence, under the rule in Hides v. Coleman, their title is superior to that of the plaintiff and must prevail.
Upon the facts as found, the conclusions of law should have been in favor of ¡.the defendants. The judgment, therefore, is reversed, and the Court below directed to enter a judgment in their favor.
Mr. Chief Justice Currey did not express any opinion.
Mr. Justice St-t after,. having been of counsel, did not participate in the decision.