Ryan, C. J.
This cause was before the court upon a non-suit of the plaintiff, reversed and remanded for trial, in 30 Wis.r 170. It comes here now on judgment after trial. And we are now urged for the appellant to review the decision of the court on the nonsuit. If the doctrine of that decision were wrong, we could reconsider it in another cause, but we cannot in this cause. In this case it is res adjudícala, binding the parties and the court. This is the settled law of this court. Parker v. Pomeroy, 2 Wis., 112; Downer v. Cross, id., 371; Cole v. Clark, 3 id., 323; Wright v. Sperry, 25 id., 617; Noonan v. Orton, 27 id., 300.
We think it proper, however, to say that we approve the ruling in the former appeal. The learned counsel who argued against it, did not appear sufficiently to appreciate the status of the case, on the nonsuit. The deed of Pettibone to Alfred Du Pont, disclosing all that he claims it did disclose, was a valid deed upon its face, carrying the legal estate. His own counterclaim rests on that effect of the deed. The question of mistake in the deel, in his own view, could not arise on the [639]*639plaintiff’s legal case. It could come up only on his own equitable defense.
It would hare been more correct practice to have first tried the equitable issue on the defendant’s counterclaim, before the court; and after, the legal issue by a jury. But this rests somewhat in the discretion of the court. And the reverse order of trial, in cases like the present, where it works no prejudice, cannot be regarded as error. Ear less can the separation of the two trials, which should be distinct. Harrison v. Bank, 17 Wis.. 340; Hegar v. Railway Co., 26 id., 624; Gunn v. Madigan, 28 id., 158.
The defendant was entitled to a trial of her equitable case, not as a defense merely, but as a counterclaim. This court has repeatedly held that such equitable defenses may be made in actions of ejectment: and the decisions only follow the plain and positive provisions of the statute. Fisher v. Moolick, 13 Wis., 321; Prentiss v. Brewer, 17 id., 635; Hegar v. Railway Co., 26 id., 624; Quinn v. Quinn, 27 id., 168. Several of these cases were upon counterclaims open to the same objection made in this case. And in a decision lately made in Lombard v. Cowham, 34 Wis., 486, the court held that an equitable defense in ejectment can be made by counterclaim only, and not by mere answer; approving a similar ruling in Dewey v. Hoag, 15 Barb., 365, upon the ground that otherwise the legal title and the possession, in such cases, might never meet.
It is very certain that we can do no such violence to the statute as to exclude equitable defenses of this character. They must be admitted either by way of answer or by way of counterclaim. And the question which now meets us is, -which is the better way, to give full effect to the policy of the statute, to quiet titles, and to bring together the legal and equitable estates and the possession? After mature consideration, we think by wav of counterclaim, and we adhere to the ruling in Lombard v. Cowham.
The objection raised to the counterclaim is, that there is a [640]*640necessary party to a proceeding to declare a mistake in the conveyance and to reform it, who is not -a party to the ejectment. Why this objection, if good against an equitable counterclaim, is not good against a defense resting on the same equity, is not made to appear. If the rights of the grantor of both parties would be affected by a judgment according to the' prayer of the counterclaim, would they not also be affected by a judgment for the defendant on the equitable answer ? Would not his conveyance to Alfred Du Pont equally fail the grantees of the latter in both cases, and equally tend to his liability over ?
We have the same difficulty in appreciating the distinction, in the effect upon the grantor of the parties, between judgment for the defendant on a legal defense, and judgment for .the defendant on an equitable defense. Had the respondent here been in possession, and the parties to this action reversed, the judgment of the county court would have been for him on his legal title. Would not that judgment have subjected Petti-bone to similar liability over to the appellant, as judgment here for the appellant on her counterclaim will to the respondent? Whichever way that action or this, between his grantees, might result, whether upon the legal estate or upon the equity, it seems to us that his rights would be similarly affected.
In such cases in ejectment, and they are not unfrequent, judgment on an issue of law, under the old or the new prac-itce, would affect the rights of third parties, as well as judgment on an equitable issue, under the new practice. It was alwaj's so, and often occurred. Yet the courts never hesitated to give judgment between the parties to ejectment, because the rights of others on their grants or covenants might be collaterally passed upon. And we see no good reason why we should hesitate now, merely because we are adjudicating an equitable instead of legal right.
In all such cases, whether arising on legal or equitable defenses, we hold that it is unnecessary that persons whose rights [641]*641are collaterally affected by judgment in ejectment should be parties or bound by the judgment. The parties can, if they choose, put the responsibility of the litigation on those under whom they claim, and so conclude them by the judgment. Adams v. Filer, 7 Wis., 306.
There remains indeed in our way the technical distinction that, on an equitable defense, the court acts negatively only in refusing to enforce the legal against the equitable right; whereas, on a counterclaim, it acts positively in granting affirmative, equitable relief, collaterally affecting one not a party. But the effect is the same; the distinction is purely technical, and' must yield to an effective construction of the statute.
We do not think that we are precluded from the rule given, by the decision of this court in McConihe v. Hollister, 19 Wis., 269. The true point of that decision, not perhaps very clearly stated, is, that the defendant, in his answer, averred that the note and mortgage in suit had not been assigned to the plaintiff, and were the property of the original payee and mortgagee, who was not a party; and, for fraud alleged against the payee and mortgagee, prayed that the note and mortgage be delivered up and cancelled. That was virtually a prayer against one not a party, not against the party, and which the defendant’s own case showed that he had no right to make against the party. Therefore the defendant’s pleading was held to be an answer, and not a counterclaim.
The only case cited to us which we find to be in conflict with the views here expressed, is Hicks v. Sheppard, 4 Lansing, 335. We do not find that the case has been before the court of appeals, and there is no authority cited for it at the bar or by the court. It rests on the reasoning of the court which decided it, which does not satisfy us, for reasons already given ; and, although entitled to consideration, is in no sense binding on this court. We therefore feel free to establish a rule for ourselves, as we have already stated it; which only goes to [642]*642reconcile the uniform decisions of this court hitherto with Lombard v. Cowham.
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Ryan, C. J.
This cause was before the court upon a non-suit of the plaintiff, reversed and remanded for trial, in 30 Wis.r 170. It comes here now on judgment after trial. And we are now urged for the appellant to review the decision of the court on the nonsuit. If the doctrine of that decision were wrong, we could reconsider it in another cause, but we cannot in this cause. In this case it is res adjudícala, binding the parties and the court. This is the settled law of this court. Parker v. Pomeroy, 2 Wis., 112; Downer v. Cross, id., 371; Cole v. Clark, 3 id., 323; Wright v. Sperry, 25 id., 617; Noonan v. Orton, 27 id., 300.
We think it proper, however, to say that we approve the ruling in the former appeal. The learned counsel who argued against it, did not appear sufficiently to appreciate the status of the case, on the nonsuit. The deed of Pettibone to Alfred Du Pont, disclosing all that he claims it did disclose, was a valid deed upon its face, carrying the legal estate. His own counterclaim rests on that effect of the deed. The question of mistake in the deel, in his own view, could not arise on the [639]*639plaintiff’s legal case. It could come up only on his own equitable defense.
It would hare been more correct practice to have first tried the equitable issue on the defendant’s counterclaim, before the court; and after, the legal issue by a jury. But this rests somewhat in the discretion of the court. And the reverse order of trial, in cases like the present, where it works no prejudice, cannot be regarded as error. Ear less can the separation of the two trials, which should be distinct. Harrison v. Bank, 17 Wis.. 340; Hegar v. Railway Co., 26 id., 624; Gunn v. Madigan, 28 id., 158.
The defendant was entitled to a trial of her equitable case, not as a defense merely, but as a counterclaim. This court has repeatedly held that such equitable defenses may be made in actions of ejectment: and the decisions only follow the plain and positive provisions of the statute. Fisher v. Moolick, 13 Wis., 321; Prentiss v. Brewer, 17 id., 635; Hegar v. Railway Co., 26 id., 624; Quinn v. Quinn, 27 id., 168. Several of these cases were upon counterclaims open to the same objection made in this case. And in a decision lately made in Lombard v. Cowham, 34 Wis., 486, the court held that an equitable defense in ejectment can be made by counterclaim only, and not by mere answer; approving a similar ruling in Dewey v. Hoag, 15 Barb., 365, upon the ground that otherwise the legal title and the possession, in such cases, might never meet.
It is very certain that we can do no such violence to the statute as to exclude equitable defenses of this character. They must be admitted either by way of answer or by way of counterclaim. And the question which now meets us is, -which is the better way, to give full effect to the policy of the statute, to quiet titles, and to bring together the legal and equitable estates and the possession? After mature consideration, we think by wav of counterclaim, and we adhere to the ruling in Lombard v. Cowham.
The objection raised to the counterclaim is, that there is a [640]*640necessary party to a proceeding to declare a mistake in the conveyance and to reform it, who is not -a party to the ejectment. Why this objection, if good against an equitable counterclaim, is not good against a defense resting on the same equity, is not made to appear. If the rights of the grantor of both parties would be affected by a judgment according to the' prayer of the counterclaim, would they not also be affected by a judgment for the defendant on the equitable answer ? Would not his conveyance to Alfred Du Pont equally fail the grantees of the latter in both cases, and equally tend to his liability over ?
We have the same difficulty in appreciating the distinction, in the effect upon the grantor of the parties, between judgment for the defendant on a legal defense, and judgment for .the defendant on an equitable defense. Had the respondent here been in possession, and the parties to this action reversed, the judgment of the county court would have been for him on his legal title. Would not that judgment have subjected Petti-bone to similar liability over to the appellant, as judgment here for the appellant on her counterclaim will to the respondent? Whichever way that action or this, between his grantees, might result, whether upon the legal estate or upon the equity, it seems to us that his rights would be similarly affected.
In such cases in ejectment, and they are not unfrequent, judgment on an issue of law, under the old or the new prac-itce, would affect the rights of third parties, as well as judgment on an equitable issue, under the new practice. It was alwaj's so, and often occurred. Yet the courts never hesitated to give judgment between the parties to ejectment, because the rights of others on their grants or covenants might be collaterally passed upon. And we see no good reason why we should hesitate now, merely because we are adjudicating an equitable instead of legal right.
In all such cases, whether arising on legal or equitable defenses, we hold that it is unnecessary that persons whose rights [641]*641are collaterally affected by judgment in ejectment should be parties or bound by the judgment. The parties can, if they choose, put the responsibility of the litigation on those under whom they claim, and so conclude them by the judgment. Adams v. Filer, 7 Wis., 306.
There remains indeed in our way the technical distinction that, on an equitable defense, the court acts negatively only in refusing to enforce the legal against the equitable right; whereas, on a counterclaim, it acts positively in granting affirmative, equitable relief, collaterally affecting one not a party. But the effect is the same; the distinction is purely technical, and' must yield to an effective construction of the statute.
We do not think that we are precluded from the rule given, by the decision of this court in McConihe v. Hollister, 19 Wis., 269. The true point of that decision, not perhaps very clearly stated, is, that the defendant, in his answer, averred that the note and mortgage in suit had not been assigned to the plaintiff, and were the property of the original payee and mortgagee, who was not a party; and, for fraud alleged against the payee and mortgagee, prayed that the note and mortgage be delivered up and cancelled. That was virtually a prayer against one not a party, not against the party, and which the defendant’s own case showed that he had no right to make against the party. Therefore the defendant’s pleading was held to be an answer, and not a counterclaim.
The only case cited to us which we find to be in conflict with the views here expressed, is Hicks v. Sheppard, 4 Lansing, 335. We do not find that the case has been before the court of appeals, and there is no authority cited for it at the bar or by the court. It rests on the reasoning of the court which decided it, which does not satisfy us, for reasons already given ; and, although entitled to consideration, is in no sense binding on this court. We therefore feel free to establish a rule for ourselves, as we have already stated it; which only goes to [642]*642reconcile the uniform decisions of this court hitherto with Lombard v. Cowham.
But it is said that, as the court below found the facts of the equitable defense against the appellant, it was immaterial there that it was treated as an answer only; and that here the judgment should not be reversed, unless we should come to a different conclusion on the facts. Though the court below erred in refusing the appellant a trial of her counterclaim, and she is therefore siricii juris still entitled to a trial of it, and therefore entitled to a reversal of the judgment, we might yet yield to such reasoning in a different case.
But in this case we shall reverse the judgment, and direct a trial of the issue on the counterclaim. This has been done in such a case before, where there -was no error on the trial. Humphrey v. Sears, 2 Wis., 201. And though it has been denied in subsequent cases (Miner v. Medberry, 7 Wis., 100; Carney v. Emmons, 9 id., 114), any doubt of the power or propriety of making this disposition of cases calling for it has been removed by sec. 7, ch. 264, Laws of 1860.
In the one before us, we do not say whether or not the appellant has made out such a case of mistake, by such kind and certainty of proof as is necessary, to justify a judgment in her favor on her counterclaim. She has certainly given some proof to raise some presumption of the mistake which she alleges. But we are not all prepared to say that it is satisfactory to us of a mutual mistake of Pettibone and Alfred Du Pont. And we all think that a new trial may well bring forth some additional light on the subject. For example: it was suggested on the argument that Sylvester Pettibone was too infirm and forgetful to recall the transaction with Alfred Du Pont and testify to it. This does not appear in the case, and would tend to remove a difficulty in accepting the kind of proof relied on. Again, it was intimated that Alfred Du Pont bought so much land at so much an acre, corresponding with [643]*643tbe consideration stated in Pettibone’s deed to him. That would tend to bring the mistake, if mistake there were, home to him, and make it mutual. And the reverse of fact would have reverse tendency of effect. It does not appear either way in the evidence. In general, we hope that a full trial of the equitable issue would tend to bring out the full truth of the matter. At all events, there is doubt enough in the court to make us unwilling to give final judgment now, either way, on proofs not wholly satisfactory, and which seem likely to be made more decisive, one way or the other, by another trial. We shall therefore follow Humphrey v. Sears.
It is necessary to say that we have concluded not to disturb the verdict on the legal issue. The only question material to the case, for the jury, was adverse possession. And we are not able to say that the appellant gave sufficient evidence to go to the jury, of such “ a definite, positive and notorious possession,” as is required under the statute. The possession proved was, at best, intermittent throughout, and at times doubtful. We think that the court below was right in refusing to submit the question to the jury.
Some stress was laid on the final words of the third subdivision of facts constituting adverse possession, in sec. 7 of the statute, R. S., ch. 138. It seemed to be taken for granted that those words meant, when the land was occupied for the ordinary use of the occupant; and that the fragmentary possession of the appellant and her ancestor might be consolidated under that phrase. But we are satisfied, on examination of the section, 'that the words relate to fuel or fencing timber for the ordinary use of the occupant. We took the section from New York, and this seems to be their construction of it. Munro v. Merchant, 26 Barb., 383. Vide, to the same effect, 29 Wis., 253. A different construction would not vary our conclusion on the facts.
In this view, we shall let the verdict stand; but reverse the findings of the court below on the equitable issue mistried be[644]*644fore it, and the judgment, and direct a trial of the issue on the appellant’s counterclaim.
Under the circumstances, we wish we could do this without costs; but the decisions of the court leave us no discretion. Bank v. Prescott, 27 Wis., 616; Noonan v. Orton, 31 id., 265.
By the Oouri. —Judgment reversed, with costs, and cause remanded with the directions above stated.