Burnett, J., delivered the opinion of the Court—Field, J., concurring.
The defendant having entered into possession of the land under the plaintiff, and in subordination to his title, is estopped from denying it. 1 Cal. Rep., 120, 470; Ellis v. James and others, April, 1857.
When the purchaser does not obtain the title which the deed purports to convey and the covenants embrace, and he goes into [403]*403and retains possession under the deed, and the failure of the title goes to the entire consideration paid, or to be paid, for the land, then he must seek his remedy by a recision of the contract, alleging a paramount outstanding title in another, and offering to re-deliver the possession, and account for the rents and profits. In such case he cannot be permitted to retain possession of the land, and denied the title under which he entered. 2 Cal. Rep., 286; 4 Cal. Rep., 266. The question whether the title of the property is in the United States, or in some one else, cannot be raised in this case. ÍTor can either of the parties object, for the purposes of this suit, that the instrument was not in law a conveyance in presentí. They have both treated it as such, and possession was had under it. 2 Cal. Rep., 141. Both parties being estopped from denying the title, the lien of the vendor cannot be affected by giving the notes. 2 Cal. Rep., 269. And the lien equally exists whether the instrument amount to a conveyance, or merely to an executory contract thereafter to convey. 1 Leading Cases in Equity, 263.
The objection that there had been no execution issued and returned nulla bona, was not well taken. This return is only one mode of proving insolvency. Any other competent proof would be equally efficient. The law does not require a vain thing, and to issue an execution against a person insolvent would be idle. Heyneman and others v. Dannenberg and others, October, 1856.
So, the objection, that the consideration of the notes was made up of both personal and real estate, we think not well taken. The plaintiff alleged in his complaint that the notes were given for the land, and this allegation is nowhere denied in the answer. The fact stands admitted by the pleadings, and the defendant could not raise the question. -
The most serious objection made by the defendant is, that the plaintiff waived his lien by his suit upon the notes.
Under a system where equity and law were administered in different suits, and in different tribunals, it has uniformly been held, that a mortgagee might first sue at law upon the note,.and afterwards proceed in equity to foreclose the mortgage. The remedies were different, and while the party could not proceed upon both at the same time, he might make his election, and first proceed at law and then afterwards in equity. And. the privilege of two remedies was as open to a vendor, as to a mortgagee.
But under our system of practice, where law and equity are both administered by the same tribunal, and may be in the same suit, the reason of the former rule does not exist, 'and the rule itself should cease. Why should the purchaser be harassed with the costs of two separate suits, to obtain the end that might be as well reached by one 1 The whole spirit of our system, and [404]*404its leading intent, is to avoid a multiplicity of suits. This is the best feature in the system. All the party has to do is to make a concise and true statement of the facts that constitute his cause of action and defence, and then the Court will give him such relief, as by the rules of law, or equity, he may be entitled to receive.'
In this case, the plaintiff should have stated all the facts, in the suit upon the notes, and asked for the proper relief, and the Court could have given him such a decree as he was entitled to have.
But as this is only a question of practice, and one that was not settled at the time the first suit commenced; and the only injury that the defendant can suffer will arise from the costs of the second suit, we will not turn the plaintiff out of Court for that reason.
Another important question arising upon the record, has regard tcthe affirmative defence set up in the answer. The plaintiff, in the instrument referred to, warranted the title to the lahd against all persons claiming through or under him. The instrument was dated twenty-sixth Novomber, 1852. It is alleged that a volunteer crop of barley was growing upon the promises, and that plaintiff had previously sold the same to one Myers, who entered, with the connivance of the plaintiff, and cut and removed the crop. The defendant insists that this was a violation of the covenants, and that he has the right to set-off the damages against the judgment. It is not alleged that plaintiff is insolvent, or that a suit for damages would be unavailing.
The previous sale of the crop to Myers would clearly come within the covenant, and the plaintiff would be liable for the damages sustained; and the only question is, whether the defendant can avail himself of such a defence, in an action upon the notes. If he could have set it up in the suit upon the notes, we will not, under the circumstances of this case, deny him the right to do so now. The relaxation of the rule, in favor of the plaintiff, must be equally extended to the defendant.
As before stated, the leading intent of our Practice Act was, to avoid a multiplicity of suits. And hence, a defendant may set up any “ cause of action arising out of the transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action.” § 47.
Where the purchaser still retains possession, and the only cause of complaint is a paramount outstanding title in another, he has not yet sustained any damage, as that outstanding title has not yet been, and may never be, enforced against him, and thus his adverse possession may ripen, by time, into a perfect title. But where the purchaser, under a deed with covenants, has been evicted by paramount title, before the purchase-money has all been paid, it is not perceived why he could not set up [405]*405the damages suffered by him, against the claim for the purchase-money. So, if the purchaser has been compelled, for his own protection, to discharge an incumbrance upon the premises, created by the vendor himself, he may equally set it up, so far as it goes, whether there had been any eviction or not. In the present ease, the damages alleged to have been sustained were past, and not merely prospective, or doubtful.
In this case, the proceeding on the part of the plaintiff is in equity, and the defence at law.
And as a jury is allowed in the one case, and denied in the other, it may, at first appearance, present some difficulty. But there is really no theoretical or practical difficulty in the case. That part of the case which involves questions of fact for the jury, may be submitted to them, and the other portion reserved for the Chancellor.
And the objection that the proceedings may become too complex by permitting different questions at law and in equity to be settled in one suit, though founded in much plausibility and some truth, is not sufficiently strong to overcome the plain provisions of the statute, and the substantial dictates of justice.
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Burnett, J., delivered the opinion of the Court—Field, J., concurring.
The defendant having entered into possession of the land under the plaintiff, and in subordination to his title, is estopped from denying it. 1 Cal. Rep., 120, 470; Ellis v. James and others, April, 1857.
When the purchaser does not obtain the title which the deed purports to convey and the covenants embrace, and he goes into [403]*403and retains possession under the deed, and the failure of the title goes to the entire consideration paid, or to be paid, for the land, then he must seek his remedy by a recision of the contract, alleging a paramount outstanding title in another, and offering to re-deliver the possession, and account for the rents and profits. In such case he cannot be permitted to retain possession of the land, and denied the title under which he entered. 2 Cal. Rep., 286; 4 Cal. Rep., 266. The question whether the title of the property is in the United States, or in some one else, cannot be raised in this case. ÍTor can either of the parties object, for the purposes of this suit, that the instrument was not in law a conveyance in presentí. They have both treated it as such, and possession was had under it. 2 Cal. Rep., 141. Both parties being estopped from denying the title, the lien of the vendor cannot be affected by giving the notes. 2 Cal. Rep., 269. And the lien equally exists whether the instrument amount to a conveyance, or merely to an executory contract thereafter to convey. 1 Leading Cases in Equity, 263.
The objection that there had been no execution issued and returned nulla bona, was not well taken. This return is only one mode of proving insolvency. Any other competent proof would be equally efficient. The law does not require a vain thing, and to issue an execution against a person insolvent would be idle. Heyneman and others v. Dannenberg and others, October, 1856.
So, the objection, that the consideration of the notes was made up of both personal and real estate, we think not well taken. The plaintiff alleged in his complaint that the notes were given for the land, and this allegation is nowhere denied in the answer. The fact stands admitted by the pleadings, and the defendant could not raise the question. -
The most serious objection made by the defendant is, that the plaintiff waived his lien by his suit upon the notes.
Under a system where equity and law were administered in different suits, and in different tribunals, it has uniformly been held, that a mortgagee might first sue at law upon the note,.and afterwards proceed in equity to foreclose the mortgage. The remedies were different, and while the party could not proceed upon both at the same time, he might make his election, and first proceed at law and then afterwards in equity. And. the privilege of two remedies was as open to a vendor, as to a mortgagee.
But under our system of practice, where law and equity are both administered by the same tribunal, and may be in the same suit, the reason of the former rule does not exist, 'and the rule itself should cease. Why should the purchaser be harassed with the costs of two separate suits, to obtain the end that might be as well reached by one 1 The whole spirit of our system, and [404]*404its leading intent, is to avoid a multiplicity of suits. This is the best feature in the system. All the party has to do is to make a concise and true statement of the facts that constitute his cause of action and defence, and then the Court will give him such relief, as by the rules of law, or equity, he may be entitled to receive.'
In this case, the plaintiff should have stated all the facts, in the suit upon the notes, and asked for the proper relief, and the Court could have given him such a decree as he was entitled to have.
But as this is only a question of practice, and one that was not settled at the time the first suit commenced; and the only injury that the defendant can suffer will arise from the costs of the second suit, we will not turn the plaintiff out of Court for that reason.
Another important question arising upon the record, has regard tcthe affirmative defence set up in the answer. The plaintiff, in the instrument referred to, warranted the title to the lahd against all persons claiming through or under him. The instrument was dated twenty-sixth Novomber, 1852. It is alleged that a volunteer crop of barley was growing upon the promises, and that plaintiff had previously sold the same to one Myers, who entered, with the connivance of the plaintiff, and cut and removed the crop. The defendant insists that this was a violation of the covenants, and that he has the right to set-off the damages against the judgment. It is not alleged that plaintiff is insolvent, or that a suit for damages would be unavailing.
The previous sale of the crop to Myers would clearly come within the covenant, and the plaintiff would be liable for the damages sustained; and the only question is, whether the defendant can avail himself of such a defence, in an action upon the notes. If he could have set it up in the suit upon the notes, we will not, under the circumstances of this case, deny him the right to do so now. The relaxation of the rule, in favor of the plaintiff, must be equally extended to the defendant.
As before stated, the leading intent of our Practice Act was, to avoid a multiplicity of suits. And hence, a defendant may set up any “ cause of action arising out of the transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action.” § 47.
Where the purchaser still retains possession, and the only cause of complaint is a paramount outstanding title in another, he has not yet sustained any damage, as that outstanding title has not yet been, and may never be, enforced against him, and thus his adverse possession may ripen, by time, into a perfect title. But where the purchaser, under a deed with covenants, has been evicted by paramount title, before the purchase-money has all been paid, it is not perceived why he could not set up [405]*405the damages suffered by him, against the claim for the purchase-money. So, if the purchaser has been compelled, for his own protection, to discharge an incumbrance upon the premises, created by the vendor himself, he may equally set it up, so far as it goes, whether there had been any eviction or not. In the present ease, the damages alleged to have been sustained were past, and not merely prospective, or doubtful.
In this case, the proceeding on the part of the plaintiff is in equity, and the defence at law.
And as a jury is allowed in the one case, and denied in the other, it may, at first appearance, present some difficulty. But there is really no theoretical or practical difficulty in the case. That part of the case which involves questions of fact for the jury, may be submitted to them, and the other portion reserved for the Chancellor.
And the objection that the proceedings may become too complex by permitting different questions at law and in equity to be settled in one suit, though founded in much plausibility and some truth, is not sufficiently strong to overcome the plain provisions of the statute, and the substantial dictates of justice. For whatever may be the views of jurists and lawyers, the plain practical truth is this: That every man of good business sense would much prefer setting off his claim against that of another, rather than first pay the money out of his own pocket, and then risk getting it again from the pocket of his adversary. Insolvency may exist in a thousand cases where its existence cannot be shown at the time, and may often occur in the future before the party could possibly recover in his cross-action. Parties were often ruined by the practical operation of the old rule, which seems to have been founded more in the convenience of Courts than upon the true principles of justice. Like the practice of a justice of the peace, who never heard any testimony except for the plaintiff, upon the alleged ground that the contrary practice of hearing the testimony on both sides tended to produce doubt and confusion in his own mind, the former rule may have been more simple, but still it was all on one side, and practically defeated the very ends contemplated by the law itself. Our Practice Act has wisely provided a remedy for this great evil, and has placed parties upon an equal footing with respect to each other. It may possibly, in some instances, increase the difficulties in particular cases; but its general operation cannot fail to* be more beneficial and just to the parties. Under the operation of the statutory rule, neither party is compelled to advance-money, in the first instance, and then sue to recover it back again," in the second.
Under the view we have taken of this case, the plaintiff is entitled to a decree for the sale of the premises, subject to be reduced in amount by whatever damages the defendant may [406]*406■ prove himself entitled to recover, if any. And as the plaintiff failed to state all the facts, and seek all the relief he was entitled to in the suit upon the notes, he should be taxed with the costs of this suit accruing in the Court below, and the plaintiff will be entitled to the costs, upon appeal.
For these reasons, the judgment of the Court below is reversed, and the cause remanded for further proceedings, in which the only proof required will regard the question of alleged damages suffered by the defendant. The case on the part of the plaintiff having been fully established, the Court below will enter a decree for the amount of the former judgment upon the notes, after deducting the amount of damages, if any, which may be found for the defendant.