
    LATTIN a. McCARTY.
    
      Supreme Court, Seventh District; General Term,
    December, 1858.
    Joinder of Causes of Action.
    The plaintiff cannot in one and the same action seek to recover possession of real property on the ground that he is the owner in fee, and that the defendant wrongfully withholds it from him, and also to confirm his title thereto by a decree that the title is in him, and that the defendant be required to convey an apparent outstanding title claimed by him to the plaintiff. Such claims are inconsistent.
    Whether the provision of 169 of the Code, allowing both legal and equitable causes of action to be united, extends to any other than that class of cases in which, it was formerly well settled that a court of equity, having acquired jurisdiction, could go on to administer legal relief,—Query?
    
    Appeal from judgment ordered on the pleadings.
    This action was brought against Michael McCarty and three others to obtain possession, and confirm to the plaintiff the title, of certain real property in the city of Auburn.
    The complaint was as follows:
    [Title of the Cause.]
    “ John C. Lattin, plaintiff in this action by Underwood, Cox, and Avery, his attorneys, complains of Michael McCarty, David L. Stanford, and others the above named defendants, and says: That heretofore, and on or about the sixth day of September, 1856, the said defendants, Nelson Fitch and Franklin L. Griswold, by deed bearing date that day, in consideration of the sum of four hundred dollars, sold, granted, and conveyed to the plaintiff all that certain piece or parcel of land in the city of Auburn, and county of Cayuga, and State of New York, on the south side of Cottage-street, and bounded as follows, to wit: Beginning at the northwest corner of a lot of land belonging to John McGarr, running thence south along said McGarr’s west line ten rods, thence running west parallel with said Cottage-street six rods, thence running north parallel with said McGarr’s west line ten rods, to Cottage-street, thence running east along the line of Cottage-street six rods, to the place of beginning.
    “ Which deed, being afterwards duly acknowledged, was recorded in the clerk’s office of Cayuga county, in Book Bo. 93 of deeds, at page 181, &c., where the same remains on record ; and thereupon the plaintiff duly took possession of the said premises, and repaired and painted the building standing thereon, and subsequently let the same to one Ransom Eggleston, as tenant, and placed him, the said tenant, in possession thereof; and he, the said Eggleston, remained so in possession under the plaintiff, until on or about the 1st day of October, 1857, when he was induced to leave the said premises by the sinister and fraudulent solicitations and inducements of the said defendant Michael McCarty as hereinafter set forth, and thereupon the said Michael McCarty fraudulently entered into possession of the said premises, contrary to the wish of the plaintiff, and still holds and maintains the possession thereof against the plaintiff, and the plaintiff is now, and since the said 6th day of September, 1856, has been lawfully and equitably entitled to the possession of the said premises, and the owner thereof in fee simple, and the said Michael McCarty well knowing the same, wrongfully withholds the possession thereof from the plaintiff.
    “ And the plaintiff further says that heretofore, and at some time in the forepart of the year 1854, the said premises were occupied and possessed by the said McCarty, under a certain contract in writing, or article, which had before that time, and on or about January 24, 1848, been executed and delivered to him by one Erastus Corning of Albany, who theretofore for many years had owned the same in fee simple ; by which article or contract the said Corning (by the said David L. Stanford, who was his agent for that purpose) covenanted with the said McCarty upon being paid the sum of $230, in instalments therein provided, to convey the said premises to him the said McCarty, by a good and sufficient deed, and at that time (1854) the said McCarty having paid some portion, of the said $230, and being in the occupancy of said premises, in consideration of a certain other piece of real estate situated in Auburn, known' as the Timmons place, being conveyed to him, the said McCarty, by the said Stanford, agreed with said Stanford to ■convey to him, the said Stanford, all his (the said McCarty’s) right, title, and interest of, in, and to, the said first above described premises, and to assign and transfer to him, the said Stanford, his (the said McCarty’s) article or contract therefor; and thereupon the said agreement was consummated by the said McCarty and the said Stanford; and the said Stanford did convey to the said McCarty the said Timmons place, and took the said McCarty’s article, and agreed with the said McCarty to assume the unpaid portion of the consideration described in said .article, and to pay the same to said Corning, and the said McCarty then assigned and transferred his said article to said 'Stanford, and took the deed from said Stanford for the said Timmons place, and placed the same on record in the clerk’s office in Cayuga county, and abandoned and surrendered to said Stanford the possession of the said premises first above described, and entered into the possession of the said Timmons place.
    “And afterwards, and on or about the 24th day of June, 1854, the said Stanford, inconsiderately thinking that he had title to the said premises, and being indebted to the said defendants, Eranklin L. Griswold and ¡Nelson Fitch, mortgaged to them the said first above described premises for the consideration of $325, and giving the usual power of sale upon default of payment of the principal or interest thereof as therein provided, which mortgage being duly acknowledged, was afterwards recorded in the said clerk’s office, in Book 46, at page 401, &c., and the same still remains of record, as by reference thereto will fully appear.
    “ And afterwards, and on or about the month of October, a. d. 1854, the said Stanford conceiving the idea that the deed from the said Corning to the said McCarty of the said premises was still necessary to complete his (the said Stanford’s) title to the same, and supposing that he, the said Stanford, had already received and recorded the deed thereof from McCarty to him, procured from the said Coming his warranty deed to the said McCarty, of the said first above described premises, and the same was delivered to him by the said Corning with that understanding and intent; but thoughtlessly omitted to inquire into the circumstances of the same, or to put the said deed last mentioned immediately upon record, he, the said Stanford, having fully paid to the said Corning the consideration money of the said article or contract, and being entitled to the said deed according to the terms thereof; and afterwards, and on or about the 29th day of July, 1856, the said Stanford having by himself or his tenant enjoyed the uninterrupted and quiet possession of the said premises first above described, for more than two years then last past, and being in default as to the payment of' the interest upon the said mortgage to the said Fitch & Gris-wold, the same was by the said Fitch & Griswold duly foreclosed by advertisement, under the statute in such case provided, and the premises duly sold at auction; and the same were thereupon purchased in by the said defendants Griswold & Fitch, for the price of $250, and the said advertisement and affidavits establishing the said foreclosure and sale were thereupon placed on file, and also duly recorded in the said clerk’s-office, in Book ¡No. 93 of mortgages, at page 180, as by reference thereto the whole of the said proceedings and the proofs of the regularity thereof will fully and at large appear; and shortly thereafter, as hereinbefore stated, the said premises were by the said defendants, Griswold & Fitch, sold and conveyed to the said plaintiff.
    “ And the said plaintiff says that he purchased the said premises in good faith from the said Fitch & Griswold, without any notice or suspicion of any defect in the title thereof, and paid therefor an adequate and valuable consideration, and entered upon the same in good faith, and made valuable repairs and improvements thereon to the value of $300 and upwards.
    “ And afterwards, and as the plaintiff is informed and believes, the said defendant Stanford having observed among his papers the said deed from the said Corning to the said McCarty, as-above described, conveying the said premises, and the same being hitherto unrecorded, intending to make good the plaintiff’s-title, left the same at the office of the clerk of Cayuga county,, and requested the county clerk to record the same, and the same bearing date September 1,1854, was, then and there duly recorded in Book 95 of deeds, at page 185, &e., on the day of , 1857, and still remains of record. And the plaintiff says upon his information and belief that the said McCarty, well knowing the premises, on or about the 30th day of September, 1854, having heard that such a deed as the last . above mentioned had been left at the clerk’s office for record, .and the said Stanford having left town and being absent from the city of Auburn, conceived the idea, or was put up to the same by some meddlesome person, that he, the said McCarty, could, in consequence of the said last-mentioned deed and the recording thereof, claim, hold, and maintain the possession of the said premises; and thereupon the said McCarty, well knowing that he had no rightful claim to, or interest in the same, and knowing that he was equitably and legally barred, by his own transfer and sale to the said Stanford, from asserting or claiming any right or title to the said premises, and contriving and intending craftily and covinously to acquire the possession of the said premises and to maintain the same against the plaintiff, and invited, hired, persuaded, and paid the said Eggleston, so being the tenant of the plaintiff, to quit the said premises, and permit him, the said McCarty, to enter upon and take possession of the same; and thereupon the said Eggleston, so being the tenant of the plaintiff, and being moved and instigated by the persuasion of the said defendant McCarty, did surrender the possession of the said premises to the said McCarty; and he, the said McCarty, thereupon fraudulently and covinously entered into the possession of the same, with the intent to defraud and cheat this plaintiff out of his equitable rights in and to the said premises ; and although often requested by the plaintiff, he refuses to quit and surrender the same, and wickedly claims to own and hold the same as of his own estate of inheritance.
    
      “ Wherefore the plaintiff demands the judgment of this court that he may, by the order and decree of this court, recover the possession of the said premises first above described; and that the said defendant McCarty may be adjudged and required to quit and surrender the same peaceably to the plaintiff, and that the said defendant McCarty may be adjudged and required to convey by quit-claim deed, or otherwise, and by the proper assurances and conveyances, all his pretended right of, in, and to the said premises to the said plaintiff, and be perpetually enjoined and barred from setting up or asserting his said pretended title; .and for such other and further or different order and relief as to the court shall seem, just and equitable, together with the costs of this action.”
    To this complaint the defendant McCarty demurred, assigning the following grounds:
    1. That the complaint does not state facts sufficient to constitute a cause of action.
    2. That there is a defect of parties defendants
    3. That several separate and distinct causes of action have-, been improperly united.
    The plaintiff moved at special term for judgment on the-pleadings, on the ground that the demurrer was frivolous.
    
      The motion was granted, and the other defendants having failed to answer, the plaintiff entered judgment by which it was decreed.
    1. That he recover possession of the premises in question.
    2. That he was owner in fee simple, and entitled to a conveyance of the apparent title in McCarty, and the latter was-directed to make such conveyance.
    3. That McCarty and all claiming under him were forever barred of any claim to the premises.
    4. That the plaintiff recover costs.
    The defendant McCarty now appealed to the general term.
    
      Warren T. Worden, for the appellant.
    I. It is the direct and necessary result of treating the demurrer as frivolous, that two-if not three distinct and inconsistent judgments have been rendered herein—not only inconsistent, as the one being a legal,. and the other an egwitdble judgment; but also inconsistent as being rendered in support of adverse principles, the maintaining of the one being m dwect conflict with the other, thereby-demonstrating that if one can be maintained the other cannot. (Code, §144, subd. 5, 6 ; Wooden a. Waffle, 6 How. Pr. R., 145; Benedict a. Seymour, Ib., 298 ; Gray a. Brown, 15 Ib., 555 ; Boyd a. Hoyt, 5 Paige, 65, and see cases cited by Jewett, arguendo at pp. 74, 76 ; Swift a. Eckford, 6 Ib., 22, and cases referred to at p. 28.)
    II. So far from the demurrer being frivolous, it was well taken, and should have been sustained. (Code, §144, subd5, 6 ; Till. Adams on E., 29, 32, and notes ; 2 Rev. Stats., 303; Jackson a. Sessions, 2 Johns. Cas., 321; Jackson a. Harrington,. 9 Cow., 86 ; Jackson a. Demont, 9 Johns. R., 55 ; Jackson a. Pierce, 2 Ib., 221; Jackson a. Van Slyck, 8 Ib., 487; Jackson a. Deyo, 3 Ib., 422, 423 ; Jackson a. Chase, 2 Ib., 84; Sinclair a. Jackson, 9 Cow., 543.) These cases show that if McCarty had been the plaintiff, he could have recovered upon his legal title the possession of the land from Lattin. (Jackson a. Farmer, and the cases cited, 9 Wend., 201; 2 Rev. Stats., 173, § 38; Mitchell a. Tighe, 1 Hopk., 119,121; Douw a. Shelden, 2 Paige, 323; Frost a. Raymond, 2 Cai., 188; 4 Kent's Com., 471; Abbott a. Allen, 2 Johns. Ch. R., 519 ; Law Gloss., 55, Crassa Negligentia; Mury a. Ballou, 1 Johns. Ch. R., 566 ; Marvin a. Bennett, 8 Paige, 312; Champlain a. Laytin, 18 Wend., 407; Wakeman a. Duchess of Rutland, 3 Ves. Jr., 233 ; Urmston a. Pate, quoted Sugd.'s Law of Vend., 314, and also in 4 Cruise's Dig., 325 (marg., 478), ch. 25, § 93 ; Goodtitle a. Morgan, 1 T., 755.)
    III. Defendant should have had leave to answer.
    
      Underwood, Cox & Avery, for the respondent.—I. The demurrer in this case was clearly frivolous. And in order to sustain his appeal, the defendant McCarty must show it to be well taken. (Martin a. Kanouse, 2 Abbotts' Pr. R., 328.)
    II. And plaintiff, on motion for that purpose, was clearly entitled to judgment for the relief demanded. (Code, § 247 ; 9 How. Pr. R., 123.)
    III. Defendant, being without merits, and having made no application for leave to answer, nor to correct any possible irregularity, is not entitled to favor upon any technical objection not affecting the merits. (Code, § 176.)
   By the Court.—E. Darwin Smith, J.

Whether the demurrer in this case is well or ill taken, depends upon the question whether the case presents a single cause of action, or two independent and' inconsistent causes of action. A demurrer will lie for multifariousness in a complaint. (Saunders a. Martin, 7 How. Pr. R., 4; Ib., 236; Gilbert a. The Hudson River Railroad Company, 8 Ib., 177.)

Every complaint considered as a single count should present a single cause of action. If a plaintiff has different causes of action which may be joined, they must he presented as in separate counts, each of which must be good of itself, and stand by itself, and be separately stated. Section 167 of Code.

If several causes of action which may be joined are set out in a complaint, without being separately stated, the remedy is by motion and not by demurrer—duplicity in such cases not being a ground of demurrer. (9 How. Pr. R., 253 ; Ib., 123 ; 10 Ib., 361.)

But the Code, section 144, suhd. 5, gives the right to demurrer, “when causes of action have been improperly joined.” This is one of the grounds of demurrer specified in this case.

The claim of the defendant’s counsel is, that two causes of action, one which would have been ejectment under the former names of actions, and one a suit in equity, are united in the same complaint.

If this be so, I do not see why the demurrer is not well taken. A party has a right to state his case and ask for such relief as he thinks he is entitled to, and if he states a single cause of action, and is entitled to relief, I think it the duty of the court to give appropriate relief. I do not think a party having a good cause of action is to he turned out of court for any mistake in the summons or in his prayer for relief. Both may be amended, if need be, in furtherance of justice, and to give effect to the real rights of the parties.

But legal and equitable rights and remedies are substantially different: the one presents an issue for trial by a jury at the circuit: the other issues to be tried by the court at special term. One seeks damages, the other relief in rein. One asks a general verdict of a jury, the other a decree appropriate to the particular facts of the case. A complaint asking for legal and equitable relief, presents a case requiring different modes and places of trial. But notwithstanding this intrinsic discordance between legal and equitable remedies, the Legislature has determined that legal and equitable causes of action may be joined in certain cases. Section 169 provides that “ the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, when they all arise out of the same transactions, or transactions connected with the subject of the action. I do not think that the Legislature intended by this section to turn civil actions into hotchpotch, or that they designed to bring all kinds of controversies between parties into a single suit. I doubt whether any thing more was really intended by this portion of the section than to require the courts to give complete relief to a party upon his whole case, stating a single transaction whether such relief were in whole or in part in the nature of a legal or equitable right.

But if any thing more was intended, as the right to unite the two causes of action, is made to depend upon their arising out of the same transactions, or transactions connected with the subject of the action, it will be sufficient to give effect to the statute in cases where legal and equitable causes of action are found distinctly and independently to arise out of the same transaction, to be separately and. concurrently enforced. Such cases may possibly arise when a party may be entitled to legal redress and equitable relief upon the same contract, or growing out of the same transactions, and where perhaps a court of equity could not give complete relief in a single action. But I can hardly imagine a case of this kind where a court of equity, having acquired jurisdiction, may not retain it to give full and complete relief independently of this provision of the statute.

In this case the plaintiff sets out, in the first four folios of his' complaint, a complete legal title to the premises in question. And this part of the complaint concludes as follows: “ And the plaintiff is now, and since the 6th day of September, 1856, has been lawfully and equitably entitled to the possession of the said premises and the owner thereof in fee simple, and the said Michael McCarty, well knowing the same, wrongfully withholds possession thereof from the plaintiff.”

This is a distinct allegation that the plaintiff is “ the owner of the premises in fee simple, and is equitably and lawfully entitled to the possession” and that the defendant “ wrongfully withholds the possession.”

Here is a complete and distinct legal cause of action alleged. The complaint then commences the statement of a new cause of action as follows: “ And the plaintiff further says, &c.” The complaint then goes on and sets out a case for equitable relief, entitling the plaintiff to a conveyance of the premises from the defendant McCarty, and an injunction to quiet Ms title, &c., a cause of action entirely inconsistent with • the former one. The complaint asks for both legal and equitable relief, and the judgment entered up, follows the complaint, and gives both legal and equitable relief. It seems to me that this is not admissible, that a party cannot blend in his complaint legal and equitable claims in this way, and have double and inconsistent relief in the same action. Such a mode of proceeding destroys all order and congruity in legal proceedings. (8 How. Pr. R., 73 ; 12 Ib., 331.) Primarily, the plaintiff needs and is entitled upon this complaint to equitable relief. When that has been obtained, he can then maintain his ejectment or action to recover possession of the premises, with damages for the withholding the same, with the rents and profits. But he must first get title, and he cannot in my opinion accomplish the object of two suits in one, in the way proposed. Perhaps he might do so upon a complaint properly framed. I think the order should be reversed, and the judgment be set aside on the ground that the demurrer was not frivolous. 
      
       Present, Welles, E. D. Smith, and Johnson, JJ.
     