
    Lust v. The Farmers’ Bank & Savings Co.
    
      Court of Appeals—Appellate jurisdiction—Chancery case— Cross-demands in action to recover possession of real estate—Answer a general denial and seeks affirmative relief by quieting title.
    
    Where, in an action for the recovery of the possession of real estate, an answer is filed which contains a general denial, putting in issue all the' claims of the plaintiff, and by a second and third defense the defendant averring ownership and possession seeks affirmative relief by setting up cross-demands, “constituting a cause of action in itself on which a separate action might have been maintained,” to wit, quieting title of the disputed tract, such answer is not to be construed merely as defensive to the allegations of the petition; and, such cross-demands relating to a subject-matter over which chancery has jurisdiction, the issues tendered by such cross-demands and the reply of the plaintiff thereto make a cause of action that is appealable.
    Appeal and Error, 3 C. J. § 39.
    (No. 19215
    Decided March 16, 1926.)
    Error to the Court of Appeals of Meigs county.
    This case comes into this court upon a proceeding in error to reverse the judgment of the Court of Appeals of Meigs county. In view of the faet that the question presented arises upon the pleadings in the case, it is necessary to set out the same in some detail.
    The petition of the Farmers’ Bank & Savings Company, original plaintiff, averred in substance that it is seized of leasehold on certain premises in the village of Pomeroy, Ohio, being about 21% feet by 11 feet in size; that, subject to certain restrictions as to light and air, it is entitled to immediate possession of said premises. The petition then goes on to aver:
    “Plaintiff says that the defendant has entered upon said premises and excluded the plaintiff from possession thereof by the erection of a brick wall, being the rear wall of a certain brick building constructed by the defendant upon the plaintiff’s premises for a distance of about 1% feet from the northerly line thereof; and by the construction of a roof and eaves which project over said wall and upon plaintiff’s above-described premises an additional distance of about 2 feet. Defendant has further entered upon and excluded the plaintiff from the possession of said above-described premises by the erection of a drainpipe from defendant’s said building extending down upon plaintiff’s premises and entering a drain or sewer also unlawfully constructed upon plaintiff’s premises by the defendant.
    “Defendant continues to maintain said structures and obstructions upon plaintiff’s said premises and refuses to remove the same, though demanded by plaintiff so to do.”
    A second cause of action recites similar rights in a like-sized piece, as described in the first cause of action, and contains this averment:
    “Plaintiff says that the defendant has entered upon and excluded the plaintiff from the possession, use, and occupancy of said premises by the erection of a portion of a brick building thereon which defendant maintains and refuses to remove, although demanded by plaintiff so to do.
    “Plaintiff therefore prays that this court will order the defendant to deliver possession of said premises to the plaintiff and to remove the structures and obstructions herein complained of from the plaintiff’s premises and easement, and perpetually enjoin said defendant from further trespassing thereon; and for such other and further relief to which the plaintiff may be entitled.”
    The amended answer of the plaintiff in error, Mattie Lust, contained three defenses.
    The first is in the nature of a general denial, and the second is as follows:
    “That defendant, in 1922, at great cost and expense to herself, erected on that part of lot 116 mentioned in plaintiff’s petition, belonging to her, the certain brick building mentioned in said petition, the rear wall of which plaintiff claims was constructed upon its premises, for a distance of P/2 feet from the northerly line thereof, and that said building was so erected and so constructed by this defendant without any knowledge on her part that the rear wall thereof was constructed and built for a distance of 1% feet on the premises claimed by plaintiff.
    “That this plaintiff at said time stood by and permitted this defendant to so erect said building and expend a large sum of money in so doing, well knowing at said time that said defendant was innocently and unknowingly erecting said rear wall on the portion of its said premises alleged in its petition, which premises on which said wall was erected defendant then believed to belong to her.
    “That despite its knowledge it made no objection to her erecting said building and the rear wall thereof, and permitted and led her to believe that she was erecting the same on her own premises, and that said wall cannot now be removed without great cost and expense to her, and if so removed will greatly damage, injure, and impair her said building for the purpose for which it was erected, to wit, a store building.
    “That if plaintiff ever was entitled to the use, occupancy, and possession of the premises described in its petition, which defendant denies, it is now estopped from claiming or asserting any right, title, or ownership therein by reason of the facts hereinbefore stated.”
    The third defense, as to the matters and things set forth, is of like nature to the second cause of action of plaintiff’s petition, and sets up the same equitable estoppel.
    The prayer of the amended answer is as follows:
    “First. That her title to the premises in said dispute he quieted and that she be decreed to be the owner and possessor in fee simple of the real estate now in dispute between her and the plaintiff and that her title thereto be quieted against this plaintiff.
    
    “Second. That plaintiff be restrained and enjoined from in any way interfering with her in her occupancy, enjoyment, and possession of said premises and the rear wall of her said brick building, and that portion of her brick building erected upon that part of lot 116 described in the second cause of action of plaintiff’s petition.
    “ Third. That she be given any and all other and further relief necessary and proper in the premises, and be permitted to go hence without day and recover of plaintiff her costs herein expended.”
    To this amended answer of Mattie Lust, the Farmers’ Bank & Savings Company filed a reply, which simply denied each and every allegation in the answer not affirmatively alleged by the plaintiff to be true.
    On the issues as tendered by the pleadings, the parties went to trial in the court of common pleas, without a jury, the same being neither waived nor demanded, resulting in a decree in favor of the Farmers’ Bank & Savings Company, and perpetually enjoining Mattie Lust from interfering with the bank’s peaceful possession and enjoyment of its leasehold and easement, to all of which findings and judgments of the court the defendant at the time excepted. An appeal bond was fixed in the sum of $500, which bond was given and the case duly appealed to the Court of Appeals of Meigs county.
    In the Court af Appeals, shortly before the matter was tried therein, a motion to dismiss the appeal was filed upon the ground that the case was not one in chancery, and therefore not appealable, and that the Court of Appeals had no jurisdiction thereof. This motion upon being heard by the Court of Appeals was sustained, and error is prosecuted here to reverse the judgment of the Court of Appeals in sustaining the said motion.
    
      Mr. A. D. Bussell, and Mr. G. G. Middleswart, for plaintiff in error.
    
      Mr. Fred W. Grow and Mr. D. Curtis Beed, for defendant in error.
   Day, J.

The sole question presented by this record is whether or not this action was appealable.

The solution of the problem whether the case is at law or in equity depends upon the pleadings and the issue tendered, and whether the remedy sought is one in which courts of chancery do and have been accustomed to exercise jurisdiction. To state the matter concisely, we think the question must turn upon the point whether or not the answer sets up such equitable cross-demands and seeks such affirmative relief as to make the case one in equity rather than at law.

It is to be noted that the second defense avers the the “defendant, in 1922, at great cost and expense to herself, erected on that part of lot 116 mentioned in plaintiff’s petition, belonging to her, the certain brick building mentioned in said petition,” etc., thus virtually pleading ownership and possession. A further averment is made constituting equitable estoppel as against the plaintiff from claiming or asserting any right, title, or ownership in such premises, and the prayer of the answer, which is really in the nature of a cross-demand, or cross-petition, recites:

“Wherefore this defendant prays as follows:
“First. That her title to the premises in said dispute be quieted, and that she be decreed to be the owner and possessor in fee simple of the real estate now in dispute between her and the plaintiff, and that her title thereto be quieted against this plaintiff.”

This, we think, constituted a pleading in the nature of an action for the quieting of title, purely equitable in character, and as the relief sought in this cross-demand of the answer was such as could be granted only by a chancellor, the action was therefore equitable in nature, and hence appealable. We do not give to the answer the narrow construction claimed by the defendant in error, to wit, that the estoppel pleaded in the answer is defensive only in character. The language of the answer is broader. The averments thereof are that the defendant, at great cost and expense, erected the building in question upon the land “belonging to her.” This is an averment of ownership and possession. The answer contained further denial of any knowledge of the property rights of the bank therein, and an averment that the bank by reason of its actions was estopped from claiming or asserting any right, title, or ownership in such property, which was tantamount to an averment of the adverse claim of the plaintiff. This, coupled with the language of the prayer, asking that her title to the premises in dispute be quieted, and that she be decreed to be the owner and possessor of the fee of the real estate in dispute, that her title thereto be quieted as against the plaintiff, is more than a mere defensive plea, but is one seeking affirmative relief. As was said by Bradbury, J., in Gill v. Pelkey, 54 Ohio St., 348, 360, 43 N. E., 991, 993:

“It may be quite true that an equitable defense merely, that is, one which sets forth some equitable considerations for the sole purpose of resisting the plaintiff’s demands, without asking any affirmative action of the court whatever, will not affect the mode of trial, although it would have done so., if the party had invoked some affirmative relief. . The difference between them being that the first is simply a defense to the cause of action stated in the petition, while the other is a cross-demand constituting a cause of action in itself, on which, a separate action might have been maintained. The former being merely a defense, cannot draw to itself a mode of trial different from that prescribed for the cause of action to which it relates. The latter being a distinct cause of action, is of equal dignity with the one set forth in the petition, and therefore equally entitled to its appropriate method of trial. * * *
“In view of these cases it may be regarded as the settled law of this state, that while an equitable defense merely will not affect the mode of trial or right of appeal, yet an equitable cross-demand set forth by a defendant in a cross-petition upon which he asks affirmative relief, will draw tp itself the mode of trial appropriate to such cause of action, and give the same right of appeal as it would do if set forth in a petition by the plaintiff in an action.”

That when the defendant in his answer seeks affirmative relief in his cross-demand he sets up á distinct cause of action, of “equal dignity with the one set forth in the petition,” is recognized in Raymond v. T., St. L. & K.,C. Rd. Co., 57 Ohio St., 271, at page 288, 48 N. E., 1093, 1096, wherein Spear, J., says:

“It seems equally well settled that, unless a new, affirmative case is made by the defendant which requires a trial in advance of a trial on the plaintiff’s cause of action, and, if found in favor of the defendant, would wholly supersede plaintiff’s claim, the trial of the case made by the plaintiff is not affected.”

It is this demand for affirmative relief in the answer, based upon the averment of the second and third defenses, that distinguishes the case at bar from that of Raymond v. Rd. Co., supra.

This court in a unanimous decision in W. C. McBride, Inc., v. Murphy, 111 Ohio St., 443, at page 446, 145 N. E., 855, 856, said:

“The petition of plaintiffs below alleged they were out of possession. However, the cross-petition of the defendant was a bill quia timet, or what is known to our Code as an action to quiet title. The cross-petition alleged possession in the answering defendant, and asserted that the plaintiffs claimed title to and interest in the premises in question. In the case developed by the pleadings the claim of title made by the plaintiffs was a cloud upon the title of the defendant, which it had a right to remove. If, under the former decisions of this court, the plaintiffs, because out of possession, could not have their remedy in chancery, but were relegated to an action in ejectment, it appears nevertheless that if the cross-petitioning defendant interposes a case, chancery in character, touching the subject-matter contained in the petition, and relief is granted thereon, the cause becomes one in chancery. 21 Corpus Juris, 506. This was in substance our holding in the case of Kiriakis v. Fountas, 109 Ohio St., 553, 143 N. E., 129, wherein the discussion upon that subject appears in the opinion on page 558.”

In the light of the liberal construction that the provisions of our Code with reference to pleadings have been accorded by this court, and upon the authority of the above cited cases, we have reached the conclusion that the answer of the defendant herein is not defensive merely, but is a good statement of cross-demands for equitable relief, to wit, declaration of ownership of the disputed tract in herself, possession thereof, adverse character of the claim of the bank, facts constituting an estoppel as to any such adverse claims, and a prayer for affirmative relief by the defendant that “her title to the premises in said dispute be quieted, and that she be decreed to be the owner and possessor in fee simple of the real estate now in dispute between her and the plaintiff and that her title thereto be quieted against this plaintiff,” together with a prayer for injunction restraining the plaintiff from in any way interfering with her in her occupancy, enjoyment, and possession of said premises.

We think the foregoing avers sufficient to constitute a distinct cause of action “of equal dignity with the one set forth in the petition, and therefore equally entitled to its appropriate method of trial.”

Actions for quieting title have long been entertained by chancery, and have been held in this state to be equitable in character, and as such are appealable under our practice. It therefore follows that the motion of the bank to dismiss the appeal was not well taken, and the Court of Appeals should have overruled the same, and its judgment in failing so to do will therefore be reversed.

Judgment reversed.

Marshall, C. J., Jones, Matthias, Allen, Kinkade and Robinson, JJ., concur.  