
    RAUSCH v. BRIEFER.
    1. Ejectment—Defenses—Equitable Title. The defense of equitable title is not available in ejectment.
    2. Judgments—Res Judicata—Matters Concluded.
    Where defendant in ejectment files a bill to enjoin the suit at law on the ground of equitable title, and is defeated on the merits, he cannot again raise the question in the suit in ejectment.
    3. Ejectment—Right of Possession—Lease—Estoppel.
    Defendant in ejectment cannot claim a right of possession under a life lease, where his plea and evidence are that he repudiated it, claiming the agreement was for a deed, returned it, and never recognized its validity during his occupation.
    Error to Macomb; Tappan, J., presiding.
    Submitted November 16, 1904.
    (Docket No. 93.)
    Decided November 29, 1904.
    Ejectment by Christian Rausch against Charles Briefer and Sarah Briefer. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.
    This is an action of ejectment. After suit was commenced, defendant Charles Briefer filed a bill in equity to enjoin the prosecution of the suit at law. It is conceded that the legal title is in plaintiff. Defendant’s father died • in 1854, and his widow afterwards married the plaintiff. Plaintiff afterwards, in 1855, purchased the land, paying the full value thereof. Defendant’s claim in the chancery suit was, and now is, that his father had contracted with the former owner for the purchase of the land; that he paid a part of the purchase price; that plaintiff, after his marriage, fraudulently obtained the benefit of that contract ; and that in equity the land belongs to the defendant. Issue was duly joined in the chancery suit, the case tried upon the merits, and the bill dismissed; the court holding that there was no foundation for the defendant’s claim. After the termination of the chancery suit default of defendant for want of plea was entered, and judgment rendered thereon. A new trial was granted, in which judgment was rendered for the plaintiff.
    Defendant’s father died before defendant was born, and he lived with, and was brought up by, the plaintiff, as one of the family, until he was 21 years of age. The land purchased by plaintiff was 40 acres. After defendant’s marriage he was permitted to occupy 20 acres of the land. By the assistance of plaintiff, a log house was moved on it, some small buildings built, and defendant has occupied and cultivated it since that time. The buildings were moved on and erected with the assistance of the plaintiff. After defendant claimed to have learned about the land contract which his father had made, plaintiff executed to him a life lease of the 20 acres, which was signed by both the plaintiff and the defendant. Defendant claims that he thought it was a deed; that he could not read, and that the instrument was read to him; that on reaching home his wife read the instrument to him. He then said he did not want that; he wanted a deed. He testified that he thereupon took the lease back to the plaintiff’s home, that plaintiff was not at home, and that he left it with his mother. He testified that he refused to accept it. Nothing further was done for some years, when defendant, asserting ownership of the land, began to commit waste. Plaintiff thereupon brought this action. Defendant, in his plea, alleged that when the lease was executed plaintiff informed him that it was a deed; that he could not read; that he procured it to be read to him, and thereupon returned it to the plaintiff.
    An examination of the plea and notice, which are not printed in the record, discloses that after his default was set aside and he obtained permission to amend his plea he amended it by giving notice (1) that an agreement had been entered into between himself and the plaintiff that in consideration of and satisfaction for certain work and labor done by him for the plaintiff, plaintiff agreed to convey to him the land; (2) that plaintiff fraudulently obtained title in the manner above set forth; and (3) that he had acquired title by adverse possession.
    
      S. F. Griffiths, for appellants.
    O. C. Lungerhausen and Byron B. ErsJcine, for appellee.
   Grant, J.

{after stating the facts). There are two complete answers to defendant’s right to assert an equitable title: First. Such defense is not available in a suit at law. Harrett v. Kinney, 44 Mich. 457. Second. That question was litigated, and determined against defendant, in the chancery suit. It is therefore res adjudicata.

Under defendant’s plea and testimony he had made neither a lease nor a contract for a lease. He asserted an agreement or promise for a deed. As soon as he ascertained that it was a lease, he repudiated it, returned it, never occupied the land under it, and never recognized its validity. He asserted a possession hostile to the lease and to any title of plaintiff. If he had accepted and recognized the lease, it would have been a bar to his assertion of any other interest in the land. The declaration and the plea put the lease out of the case. Paige v. Willet, 38 N. Y. 31; Van Dyke v. Maguire, 57 N. Y. 431; 1 Am. & Eng. Enc. Law (2d Ed.), p. 719; 11 Am. & Eng. Enc. Law (2d Ed.), p. 447.

The court correctly instructed the jury that:

“His own evidence is to the effect that he wholly repudiated the instrument, and I instruct you, as a matter of law, under the evidence in this case, he could not claim right to possession thereunder at the time of the •commencement of this suit.”

Judgment affirmed.

The other Justices concurred.  