Strahan, J.,
delivered tbe opinion of tbe court.
By bis complaint tbe plaintiff claims to be tbe equitable owner of tbe land in controversy and to bave been in tbe actual and exclusive possession of tbe same ever since tbe year 1862. It appears tbat in tbe year 1862 one J. A. Vel-zain and Jesse Fry owned tbe land in controversy and tbat tbe same was a part of a larger tract owned by them; tbat tbe plaintiff also owned a large tract wbicb adjoined tbe lands of Velzian and Fry; tbat a small parcel of tbe plaintiff’s land laid on tbe west side of tbe South Umpqua river, consisting of about six acres, and tbat tbe parcel in controversy was separated from tbe other lands of Vel-zain and Fry by said river and was situated on tbe east side thereof, and consisted of about twenty-four acres and joined tbe plaintiff’s other lands; tbat at tbis time tbe plaintiff and Velzian and Fry entered into an agreement to exchange their small parcels, one for tbe other; but inasmuch as tbe lands wbicb plaintiff was to receive in exchange were regarded of greater value than tbe other, be was to pay tbe difference in bogs, wbicb be did in tbe sum of seventy-five dollars, tbe difference in value agreed upon. At tbat time tbe plaintiff entered into possession of tbe twenty-four acre tract and caused it to be included in bis enclosure, and every year thereafter, except two or three, be cultivated tbe same, and when tbe land was not in cultivation be used it in all respects like bis other lands and sometimes using it for pasturage; that at tbe same time Velzain and Fry entered into possession of tbe six-acre tract and retained possession of tbe same. It also appears tbat Velzain and Fry conveyed their entire tract [78]*78of land by deed to the defendant, including the twenty four acres which they had sold to the plaintiff; but at the time the defendant took said deed he had full notice of the plaintiff’s rights in and to said twenty-four acres. In September, 1887, the defendant recovered a judgment against the plaintiff herein in the circuit court of Douglas county, Oregon, for the possession of said twenty-four acres, and is abouh to issue an execution to support the same. The defendant’s answer denies the material allegations of the complaint, pleads the statute of limitations, and relies upon the judgment in ejectment as an estoppel,
1. A very decided preponderance of the evidence tends to support the plaintiff’s allegations, and I think clearly entitles him to the relief which he seeks, unless his right thereto is defeated by something shown upon the part of the defendant; or unless there is some fatal defect or omission in his own statement of the case, and to those matters our attention will now be directed.
2. The first point presented by the answer of the defendant requiring notice is his plea of the statute of limitations. But if that objection really existed and was available at any stage of the suit, it was waived because not taken by demurrer. The facts are fully stated by the complaint, and if the plaintiff’s equity was barred by the statute the objection was apparent on the face of the complaint. In such case the objection must be taken by demurrer or else it is waived. Section 67, Hill’s Code, enumerates the grounds of demurrer to the complaint, and the seventh specification is ‘ ‘that the action has not been commenced within the time limited by this Code. ” And section 70 provides: “When any of the matters enumerated in section 67 do not appear on the face of the complaint, the objection may be taken by answer.” Section 71 provides: “If no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.” This [79]*79section does not make it optional with a defendant to take the objection by demurrer or answer at his pleasures but construed in connection with the preceding sections, it means that the defendant must demur where the objection appears on the face of the complaint; and when it does not so appear, the objection may be taken by answer, and where it is not taken by demurrer when that is the proper mode of raising the question, or by answer, where that is the proper mode, the same is waived and cannot be insisted upon at the trial. This construction of the sections of the Code referred to effectually eliminates the statute of limitations from the case and leaves it to rest entirely upon the other questions presented.
3, This leaves the question of estoppel to be considered. In Hill v. Cooper, 6 Or. 182, the precise question involved here came before this court for the first time for adjudication, and after a careful examination of the point, it was held that, under the statute which allowed an equitable defense by cross-bill in actions at law, a party might rely upon a legal defense in an action without being thereby precluded from afterwards asserting his equitable title in an original suit.
That is what this plaintiff is endeavoring to do by this suit after having suffered defeat in a trial in an action at law, and under the authoiity of Hill v. Cooper, supra, his equities were not concluded by the judgment. But counsel for the respondent contend that the jurisdiction of a court of law was so enlarged by the amendment to section 378, now section 382, of Hill’s Code, in 1878, as to necessarily enlarge and extend the effect of a judgment at law in such case ; and they claim in effect that Hill v. Cooper, supra, is no longer an authority under this statute for the principle therein announced. The amendment was in the form of a proviso to the original section, and added these words: “Provided, this section shall not be construed so as to bar an equitable owner in possession of real property from defending his possession by means of his equitable title; and in any action for the recovery of real property, or the [80]*80possession thereof, by any person or persons claiming or holding the legal title to the same under such patent against any person or persons in possession of such real property under any equitable title, or having in equity the right to the possession thereof, as against the plaintiff in such action, such equitable right of possession may be pleaded by answer in such action, or set up by bill in equity to enjoin such [action] or execution upon any judgment rendered therein; and the right of such equitable owner to defend his possession in such action, or by bill for injunction, shall not be barred by lapse of time while an action for the possession of such real property is not by the provisions of title N. of chapter I. of this Code. ”
No doubt these provisions do greatly extend the jurisdiction of courts of law in such case; but such jurisdiction is not comprehensive enough to enable such court to act finally upon the rights set up by the plaintiff in this suit. A defendant sued in ejectment might use his equitable title defensively in an action at law, but he could use it for no other purpose.
That amendment of the Code did not confer upon a court of law jurisdiction over the entire equities of the defendant, and enable it to grant full and complete relief by decreeing specific performance when proper. Besides, under our practice, the machinery of a court of law is not adapted to work out such results.
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Strahan, J.,
delivered tbe opinion of tbe court.
By bis complaint tbe plaintiff claims to be tbe equitable owner of tbe land in controversy and to bave been in tbe actual and exclusive possession of tbe same ever since tbe year 1862. It appears tbat in tbe year 1862 one J. A. Vel-zain and Jesse Fry owned tbe land in controversy and tbat tbe same was a part of a larger tract owned by them; tbat tbe plaintiff also owned a large tract wbicb adjoined tbe lands of Velzian and Fry; tbat a small parcel of tbe plaintiff’s land laid on tbe west side of tbe South Umpqua river, consisting of about six acres, and tbat tbe parcel in controversy was separated from tbe other lands of Vel-zain and Fry by said river and was situated on tbe east side thereof, and consisted of about twenty-four acres and joined tbe plaintiff’s other lands; tbat at tbis time tbe plaintiff and Velzian and Fry entered into an agreement to exchange their small parcels, one for tbe other; but inasmuch as tbe lands wbicb plaintiff was to receive in exchange were regarded of greater value than tbe other, be was to pay tbe difference in bogs, wbicb be did in tbe sum of seventy-five dollars, tbe difference in value agreed upon. At tbat time tbe plaintiff entered into possession of tbe twenty-four acre tract and caused it to be included in bis enclosure, and every year thereafter, except two or three, be cultivated tbe same, and when tbe land was not in cultivation be used it in all respects like bis other lands and sometimes using it for pasturage; that at tbe same time Velzain and Fry entered into possession of tbe six-acre tract and retained possession of tbe same. It also appears tbat Velzain and Fry conveyed their entire tract [78]*78of land by deed to the defendant, including the twenty four acres which they had sold to the plaintiff; but at the time the defendant took said deed he had full notice of the plaintiff’s rights in and to said twenty-four acres. In September, 1887, the defendant recovered a judgment against the plaintiff herein in the circuit court of Douglas county, Oregon, for the possession of said twenty-four acres, and is abouh to issue an execution to support the same. The defendant’s answer denies the material allegations of the complaint, pleads the statute of limitations, and relies upon the judgment in ejectment as an estoppel,
1. A very decided preponderance of the evidence tends to support the plaintiff’s allegations, and I think clearly entitles him to the relief which he seeks, unless his right thereto is defeated by something shown upon the part of the defendant; or unless there is some fatal defect or omission in his own statement of the case, and to those matters our attention will now be directed.
2. The first point presented by the answer of the defendant requiring notice is his plea of the statute of limitations. But if that objection really existed and was available at any stage of the suit, it was waived because not taken by demurrer. The facts are fully stated by the complaint, and if the plaintiff’s equity was barred by the statute the objection was apparent on the face of the complaint. In such case the objection must be taken by demurrer or else it is waived. Section 67, Hill’s Code, enumerates the grounds of demurrer to the complaint, and the seventh specification is ‘ ‘that the action has not been commenced within the time limited by this Code. ” And section 70 provides: “When any of the matters enumerated in section 67 do not appear on the face of the complaint, the objection may be taken by answer.” Section 71 provides: “If no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.” This [79]*79section does not make it optional with a defendant to take the objection by demurrer or answer at his pleasures but construed in connection with the preceding sections, it means that the defendant must demur where the objection appears on the face of the complaint; and when it does not so appear, the objection may be taken by answer, and where it is not taken by demurrer when that is the proper mode of raising the question, or by answer, where that is the proper mode, the same is waived and cannot be insisted upon at the trial. This construction of the sections of the Code referred to effectually eliminates the statute of limitations from the case and leaves it to rest entirely upon the other questions presented.
3, This leaves the question of estoppel to be considered. In Hill v. Cooper, 6 Or. 182, the precise question involved here came before this court for the first time for adjudication, and after a careful examination of the point, it was held that, under the statute which allowed an equitable defense by cross-bill in actions at law, a party might rely upon a legal defense in an action without being thereby precluded from afterwards asserting his equitable title in an original suit.
That is what this plaintiff is endeavoring to do by this suit after having suffered defeat in a trial in an action at law, and under the authoiity of Hill v. Cooper, supra, his equities were not concluded by the judgment. But counsel for the respondent contend that the jurisdiction of a court of law was so enlarged by the amendment to section 378, now section 382, of Hill’s Code, in 1878, as to necessarily enlarge and extend the effect of a judgment at law in such case ; and they claim in effect that Hill v. Cooper, supra, is no longer an authority under this statute for the principle therein announced. The amendment was in the form of a proviso to the original section, and added these words: “Provided, this section shall not be construed so as to bar an equitable owner in possession of real property from defending his possession by means of his equitable title; and in any action for the recovery of real property, or the [80]*80possession thereof, by any person or persons claiming or holding the legal title to the same under such patent against any person or persons in possession of such real property under any equitable title, or having in equity the right to the possession thereof, as against the plaintiff in such action, such equitable right of possession may be pleaded by answer in such action, or set up by bill in equity to enjoin such [action] or execution upon any judgment rendered therein; and the right of such equitable owner to defend his possession in such action, or by bill for injunction, shall not be barred by lapse of time while an action for the possession of such real property is not by the provisions of title N. of chapter I. of this Code. ”
No doubt these provisions do greatly extend the jurisdiction of courts of law in such case; but such jurisdiction is not comprehensive enough to enable such court to act finally upon the rights set up by the plaintiff in this suit. A defendant sued in ejectment might use his equitable title defensively in an action at law, but he could use it for no other purpose.
That amendment of the Code did not confer upon a court of law jurisdiction over the entire equities of the defendant, and enable it to grant full and complete relief by decreeing specific performance when proper. Besides, under our practice, the machinery of a court of law is not adapted to work out such results. A court of law might, for some one of the reasons named in the section, refuse to turn a defendant out of possession, but it would be utterly powerless to clothe him with the legal title, which in this case the defendant holds as trustee for the plaintiff, or to adjust the equities which might grow out of the relations of the parties or be presented by the facts of the particular ease. We must, therefore, hold in this case that the judgment at law did not estop or preclude the plaintiff from demanding of the defendant a conveyance of the legal title to the land in controversy which the defendant acquired with notice of the plaintiff’s equities.
4. One other question remains to be considered. It [81]*81was suggested on tbe argument here that the plaintiff has not shown himself entitled to the relief which he seeks for the reason he has not conveyed the six acres, and therefore he' has not done equity. Fry has been a non-resident of the State for many years, and Velzain sets up no claim to the six acres, and it does not cleariy appear that the defendant has succeeded to their rights in said land, but I think it may be inferred from all the circumstances attending the transactions that he did.
The record does not disclose what is the condition of the six acres at this time; but the decree appealed from will be reversed, and the plaintiff will have a decree for the relief which he seeks upon the conveyance by him to the defendant of said six acres, or in default of such conveyance the court below is directed to ascertain the value of said six acres at the time of the commencement of this suit; and the value so ascertained shall be decreed to be a charge upon the twenty-four acres herein directed to be conveyed in favor of the defendant, which may be enforced by execution, and that the enforcement of the judgment mentioned in the complaint be perpetually enjoined and restrained.