
    Witte v. Lockwood.
    1. The general rule is that a defendant, is bound to set up every defense, legal or equitable or both, whicb he may have to the action, and waives those not pleaded ; but where the facts claimed to afford a defense are sufficient to constitute a Counter-claim, there is an exception to such general rule.
    2. A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defense or a counter-claim, or he may maintain an action thereon.
    Error to the District Court of Lorain county.
    In an action prosecuted by Philip Lockwood against Otto Witte, in the court of common pleas of Lorain county, to recover possession of a parcel of real estate, containing about 3,800 square feet, in that county, the only issue was with respect to the legal title, which issue was framed under the Civil Code, § 559, Rev. Stats. § 5782. No allusion was made in the pleadings or evidence to any mistake in any of the deeds in the chain of title of either of the parties. Judgment was rendered in 1876, on the issue joined, in favor of Lockwood for the recovery of such possession. That parcel of real estate is the property in controversy in this case.
    Lockwood being about to enforce the judgment, Witte, in 1877, commenced an action in the court of common pleas of Lorain county, against Lockwood and others, and obtained an injunction against such enforcement. In the petition he states that in 1849, Elam Fairchild was the owner of a certain tract of land, including the parcel above mentioned, and that through a series of purchasers of the whole tract, ho (Witte), became the owner thereof in 1870; that the purchaser from Fairchild paid him for the whole tract, and Fairchild put him in possession of the same, and executed and delivered to him a deed, intending thereby to convey to him the whole tract, but by mutual mistake of the parties, the parcel here in dispute was omitted; that the successive purchasers in like manner, bought, paid for, and were placed in possession of the whole tract, and received deeds which by like mutual mistakes omitted the parcel in dispute ; that he (Witte), is the owner in equity of the parcel in dispute, and entitled to have the legal title to the same ; and that the legal title to the parcel in dispute has passed from Elam Fairchild to Philip Lockwood, through successive purchasers, with notice of such adverse possession and consequently of his (Witte’s) rights; and that Lockwood had obtained, and was about to enforce a judgment for the recovery of possession of such parcel as already stated. Elam Fairchild was made a party, and also all the persons who claimed through him as aforesaid, and the prayer was that the several deeds should be corrected in the particular named, and that the judgment for the recovery of possession should be perpetually enjoined.
    Lockwood, in his answer, set up and relied on the judgment in his favor as a bar to the action. There was neither demurrer nor reply to the answer, but the district court at the trial on appeal to that court, excluded evidence offered by Witte in proof of the allegations of his petition, and Witte excepted ; and thereupon the court dissolved the injunction and rendered judgment in favor of Lockwood and against Witte on the ¡headings, and Witte prosecutes this petition in error to reverse the judgment.
    
      1. A. Webster, for plaintiff in error.
    
      Metcalf & Metcalf,\ for defendants in error.
   Okey, J.

The petition in this case contains allegations which, properly stated, would have constituted a good bill in chancery to reform the deeds, and lienee the petition is sufficient. Under the former practice, allegation and proof of such equitable title would not have been permitted in an action of ejectment, and hence it would have been necessary to resort to such a bill. But under the civil code “ the defendant may set forth in his answer as many grounds of defense, counter-claim and set-off as lie may have, whether they be such as have been heretofore denominated legal or equitable, or both” (§ 93, Rev. Stats. § 5071), and hence it is clear that the equitable title might have been set up as a counter-claim. 3 Wait’s Act. & Def. 113.. Furthermore, it might have been pleaded as a defense (Lancaster, etc. Co. v. Colgate, 12 Ohio St. 344), without demanding a remedy of an affirmative character ; but, whether this remedy is demanded or not, the answer should contain all the substantial facts that would be found in a cross-bill in chancery.” Pomeroy’s Rem., § 95; Powers v. Armstrong, 36 Ohio St. 357. In such equitable action, or in such counter-claim, it would be necessary to make all persons in interest parties. “ When the land has passed through several owners by a succession of conveyances, all the series of grantors, or their heirs if they themselves are dead, are necessary defendants.” Pomeroy’s Rem. § 371; Civil Code, § 96 ; Rev. Stats. § 5074. Equally cogent is the reason for holding such parties to be essential where the mistake is pleaded as a defense; for a judgment, on the equitable title, whether pleaded as a counter-claim or as a defense, or asserted in an independent suit, would operate, mutually, as an estoppel on the parties to the action and all claiming under them; and if such title may be set up in the answer as a defense, without making all persons in the chain of title parties, the rights of persons not parties to the suit will be, in many cases, virtually determined by the judgment.

The general rule is that a party when sued is bound to set up every defense, legal or equitable or both, which he may have to the action, and effectually waives those not pleaded. Life Ins. Co. v. Bangs, 103 U. S. 780 ; Ruegger v. Railroad Co., 103 Ill. 449; Tuttle v. Harrill, 85 N. C. 456. The claim that this is so in Ohio is strengthened by the fact that a leading object in the enactment of our code of civil procedure was to enable suitors and courts in each case, “ to avoid multiplicity of suits, and to attain a final and complete determination of all the questions involved in it, with the least possible delay and at the least possible expense.” Penn v. Hayward, 14 Ohio St. 302, 306. Rut we may fairly say that here the statute has made an exception. “ If the defendant omit to set up the counter-claim or set off, he cannot recover costs against the plaintiff in any subsequent action thereon,” except in cases specially provided for. Civil Code, § 95 ; Rev. Stafs. § 5073; Covington, etc. Co. v. Sargent, 27 Ohio St. 233; Swensen v. Cresop, 28 Ohio St. 668. The inference that a defense, where the same facts constitute a counter-claim, may also be withheld without estopping the defendant, seems to be irresistible. It follows that Witte had his election to plead his equitable title as a counterclaim or a defense, or reserve it as he has done, for a separate action. The New York code of civil procedure, from which ours is largely borrowed, had received a construction in accordance with the view here expressed, before- the adoption of our code (Halsey v. Carter, 1 Duer, 667); Mr. Pomeroy in his able work on the modern codes of civil ¡procedure, states the rule in the same way (Remedies & Rem. Rights, § 804); and we are led to the conclusion, after a laborious examination of the cases, that the position is imjiregnable. Lorraine v. Long, 6 Cal. 452 ; Hough v. Waters, 30 Cal. 309 ; McCreary v. Casey, 45 Cal. 128; Hills v. Sherwood, 48 Cal. 386; Dorsey v. Reese, 14 B. Mon. 157; Welch v. Hazelton, 14 How. Pr. 97; Lignot v. Redding, 4 E. D. Smith, 285; Insglee v. Hampton, 8 Hun, 230 ; Bellinger v. Craigue, 31 Barb. 534; McDonald v. Christie, 42 Barb. 36; Barth v. Burt, 43 Barb. 628; Gillespie v. Torrance, 25 N. Y. 306 ; Simeon v. Schurck, 29 N. Y. 598; Brown v. Gallaudet, 8 N. Y. 413 ; Schwinger v. Raymond, 83 N. Y. 192; Foster v. Evans, 51 Mo. 39, Gardinier's App. 89 Pa. St. 528; Mc-Ewen v. Bigelow 40 Mich. 215. And see Waterman on Set-off, § 689. Indeed, the circumstance that new parties were necessary may have afforded, as in Coates v. Chillicothe Bank, 23 Ohio St. 415, a strong reason why it may have been the better course to seek relief by independent suit.

An examination of the Ohio cases (cf. Covington, etc. Co. v. Sargent, supra; Roby v. Ramsberger, 27 Ohio St. 647 ; Swensen v. Cresop, supra; Porter v. Wagner, 36 Ohio St. 471), shows an apparent conflict in the syllabi or head-notes. Although in this state such head-notes are prepared by the judges, and in all cases receive the assent of a majority — a practice with which we are well satisfied — they are always to be read in connection with the facts appearing in the report, and so read, the cases are not in conflict, nor are they in conflict with the principles asserted in tins case.

Judgment reversed.

MoIlvaine, J., dissented from the second proposition in the syllabus.  