
    Mary Ann Graham v. Owen Dunnigan.
    Although a defendant whose answer is demurred to, may, as a general rule, assail the complaint as not containing facts sufficient to constitute a cause of action, it is doubtful, whether the rule applies where the demurrer is merely to a counter-claim, which, although contained in the answer, forms no part of the defence that the answer sets up.
    Where a tenant in dower, to whom, as such, certain apartments in a dwelling-house have been assigned, has been compelled for the protection of her life estate, to pay the taxes on the whole building, she is entitled to recover against the tenant occupying the rest of the house such an amount of the taxes so paid as may be justly apportioned to that part of the building that such tenant occupies.
    There is no force in the objection, that there is no contract by the defendant to pay the sum demanded. This law implies a contract by the defendant to repay his just proportion of the taxes, as so much money paid for his use.
    The court held the counter-claim to be bad, for reasons applicable only to the special circumstances of the case.
    Judgment sustaining demurrer to counter-claim affirmed with costs.
    (Before Hoffman, Slosson, and Woodruff, J.J.)
    Heard, January;
    decided, March, 1857.
    Appeal by defendant, from a judgment at Special Term for plaintiff upon her demurrer to a counter-claim, set up in the defendant’s answer.
    
      H. Brewster, for defendant, appellant.
    
      W. Gf. Brown, for plaintiff, respondent.
   By the Court. Woodruff, J.

On the argument of the appeal herein, it was urged on behalf of the appellant, that whether the counter-claim demurred to is sufficient as set out in the answer or not, the defendant is entitled to judgment upon the demurrer, on the former and familiar rule, that on a demurrer to the defendant’s pleading, he is at liberty to go back to a previous pleading of the plaintiff, and if that be bad, he is entitled to judgment, although his own pleading be also defective, and that a bad plea is good enough in response to a bad declaration; he therefore insists that the complaint herein does not state facts sufficient to constitute a cause of action.

Whether the rule referred to can avail the defendant in any case it is unnecessary to say. Many defects in a complaint, if not insisted upon by demurrer to the complaint itself, are waived for all purposes. But it is provided expressly, that if the complaint does not state facts sufficient to constitute a cause of action, that defect is not waived though not insisted upon by way of demurrer. If we did not think it quite clear that the objection itself is without foundation, we might deem it material to inquire in what manner and in what stage of the action it should be taken advantage of, and whether it could be urged to defeat the plaintiff’s demurrer to the defendant’s counter-claim, but we prefer to content ourselves with the conviction that the complaint is not liable to the objection.

The complaint shows that the defendant, on or about the 25th of April, 1852, became the owner in fee of a certain house and lot, certain apartments in which had been adjudged and set off to the plaintiff in December, 1851, as and for her dower in the premises; and that the plaintiff, for the protection of her life estate in those apartments, has been compelled to pay the whole of the taxes, etc., on the said house and lot since the said 25th day of April, 1852, while the defendant has been in the possession of the residue of the premises, and in the receipt of the rents and profits thereof.

There is no doubt, that upon these facts, a cause of action has arisen in favor of the plaintiff for the reimbursement to her of so much of such taxes, etc., as is properly to be apportioned to that portion of the premises in the defendant’s possession. The plaintiff has paid money for the use of the defendant. She was compelled to pay it for the protection of her own life estate in the portion of the house which she occupied.

The ground of objection stated by the defendant’s counsel, is, that the complaint shows no contract by the defendant to pay, and no breach of any contract. The answer to this is, that in such case the law implies a contract by the defendant to pay his just proportion. Here is a contract as truly as in other cases where one pays money for the use of another by his request. _

It is further insisted, that the complaint does not state what portion of the premises are in the defendant’s possession, nor that any specified portion is in his possession.

To this the reply is obvious. The complaint does state that the fair and equitable portion of the taxes, etc., properly chargeable upon the defendant’s portion of the premises is $200. If the defendant desired that the complaint be made more definite and certain, he should have applied by motion. The substantive ground of the plaintiff’s claim, and the facts which show her title are averred, and whether the complaint be regarded as seeking an apportionment of the taxes and a judgment that the defendant reimburse to her his just proportion, or as in the nature of a declaration for money paid to the defendant’s use, the essential facts to constitute a cause of action are stated.

The demurrer to the defendant’s counter-claim rests upon its alleged insufficiency, and in considering it, we must take the facts alleged in the complaint, or, at all events, those which are not inconsistent with the averments in the counter-claim as admitted, and the counter-claim under those admissions stands thus :—

The husband of the plaintiff died, seized of the premises, (including the house and lot, before rented, and the adjoining house,) on the 11th day of May, 1848. On the 20th of June, 1851, one Charles Sterling was, by an order of this court, appointed receiver of the rents and profits of all the property and premises in the complaint described, and the order for his appointment directed him to pay the taxes, assessments, and interest on certain mortgages upon the premises, and certain other costs, charges, and annual expenses.

On or about the 26th of December, 1851, the plaintiff’s dower was set off to her, by assigning to her use a part of the corner house and lot.

At some time prior to April 26th, 1851, the heirs-at-law conveyed the property to one James Linden, and on that day he conveyed all his right, title, and interest therein to the defendant, and she has paid all the taxes, etc., on the corner house and lot since that time.

The defendant alleges that the plaintiff paid no rent to the receiver, and that such receiver was compelled to pay taxes, etc., on the corner house out of the rents collected by him “ out of other property belonging to the defendant,” when the defendant was receiving the rents and profits of the corner house and paid no taxes, etc., thereon. That the sums so paid by the receiver amount to $200, which, it is added, “ the plaintiff owes the defendant in his own right as the owner in fee of property, and assignee of James Linden the former owner of the premises, described in the complaint herein, the same has been assigned to the defendant by the said Linden for a valuable consideration duly paid, etc.

We might dispose of the demurrer to this counter-claim by saying, that we fully concur in the opinion given by Mr. Justice B osworth, on sustaining the demurrer at Special Term. We may, however, add, it in nowise appears in what suit the receiver was appointed, nor who were the parties thereto. If it be true that the order appointing the receiver directed him to collect the rents of the premises and pay the taxes, etc., which he paid, we must assume that the order was rightly made, and that it was based upon equities existing between the parties to the suit, whoever they were, which made it proper that lie should pay such taxes, etc., out of the rents collected.

If the receiver collected rents from property not embraced in the order, and if that is what the defendant means by “other property of the defendant,” the receiver is responsible, and the defendant should seek redress from him.

It does not appear that when the receiver collected the rents and paid the taxes, either James Linden or the defendant had any interest in the premises described in the complaint, and if not, they had no interest in the rents collected therefrom. It in nowise appears that the plaintiff was liable to pay rent to the receiver for the premises assigned to her for her dower.

It does not appear that prior to the assignment of her dower she occupied the corner house, and if she did, the adjustment of the taxes, etc., was, for aught that appears, a matter between her and the heirs-at-law, with which neither Linden nor the defendant had any concern.

And we must, moreover, assume that the powers and duties of the receiver, and his acts in his receivership, were under the direction of the court, and that all the rights and equities of the parties affected thereby were properly adjusted and determined by the court in the suit in which he was appointed. If he made any misappropriation of moneys received by him, the party who was injured should seek redress from him.

If we could find, in the facts alleged, any ground for a claim in favor of James Linden, it would at least be doubtful whether there is any sufficient averment of an assignment of such claim to the defendant. The words, “the same has been assigned to the defendant,” etc., in the connection in which they stand, seem rather to refer to the premises than to any such claim for money due Linden.

It may not be difficult to point out other defects in the supposed counter-claim, but enough have been suggested to warrant the conclusion, that the order appealed from must be affirmed, with costs.  