
    Alden Allen and Wife v. Richard Shackelton.
    In a suit by a mortgagee against his mortgagor to obtain a sale of the mortgaged premises, the mortgage being given to secure the payment of the purchase money for the premises, the mortgagor may set up, as a defense, a counterclaim for damages for fraud practiced by the mortgagee in his sale of the premises to the mortgagor.
    Error to the district court of Knox county.
    On the first clay of April, 1859, Alden Allen executed and delivered to Richard Shackelton his promissory note in the sum of four hundred dollars payable twelve months from date, and on the fifth day of April, 1859, Alden Allen and Olive Allen, his wife, executed their mortgage to Shackelton upon certain real estate in Knox county, to secure the payment of the note.
    After the maturity of the note, Shackelton, the defendant in error, filed his petition in the court of common pleas of Knox county, against Alden Allen and wife, the plaintiffs in error, on the note and mortgage, and prayed for the sale of the mortgaged premises, and also for a personal judgment against Allen for the amount due on the note.
    Allen, the husband, answered, setting up as a defense and counter-claim, that the note was obtained by fraud, and was without consideration. That it was given to Shackelton in part payment for a lot of land in Williard, Knox county, Ohio, sold and conveyed to him by Shackelton on the first day of April, 1859. He averred that he was a stranger in the town and unacquainted with the boundaries of the lot, and that Shackelton in describing its boundaries, deceived him, falsely and fraudulently representing, among other things, that a valuable dwelling-house used as a hotel was upon the lot. That induced by the false and fraudulent representations of Shackelton, he agreed to pay one thousand dollars for the lot, of which he paid six hundred dollars at the time of purchase, and gave the note of four hundred dollars for the balance of the purchase money. That the lot, in fact, was worth not more than three hundred dollars, and that he would not have given more than that sum for it, had it not been for the fraud practiced upon him by Shackelton. He demanded judgment for his damages on his counter-claim.
    Shackleton replied, denying all the material allegations of the answer.
    In the common pleas the cause was submitted to the court. The said Olive Allen having failed to demur or answer, the petition was taken ás confessed as to her. The court found the equity of the case to be with the plaintiff, and “ That there was due on said note and mortgage, in the petition described, on the first day of the present term of this court, the sum of $420.73. And the court do further find that there is due the defendant on the counter-claim set up in the answer, the sum of six cents. It is thereupon ordered, adjudged and decreed, that the defendant, Alden Allen, within ten days from the rising of this court, pay to the said plaintiff the said sum of $420.67, being balance after deducting said counter-claim, with accruing interest thereon, and cost of suitand in default thereof, that the mortgaged premises be sold according to law.
    Erom this decree Alden Allen appealed to the district court, wherein the court found and decreed for the plaintiff, on his note and mortgage, and against the defendant on his counterclaim.
    Erom a bill of exceptions taken on the trial, it appears that the defendant offered evidence proving all the material facts alleged in his answer setting up a counter-claim; but the court refused to consider the same, and held that such defense could not be made in that action. To this holding the defendant excepted.
    This petition in error is brought to reverse the judgment of the district court, and the error assigned is, that the court refused to hear and consider the evidence of the defendant in support of his counter-claim.
    
      
      Vance Cooper, for plaintiffs in error.
    
      W. Dunbar, for defendants in error.
   Wilder, J.

The record shows that the original action came into the district court of Knox county by appeal from a decree of the common pleas, directing the sale of certain mortgaged premises. The material issues made by the pleadings were by the denial by the defendant, Alden Allen, the mortgagor, of any indebtedness to the plaintiff, the mortgagee, and by the denial, by the plaintiff, of the allegations contained in the defendant’s counter-claim for damages.

The only controverted question which appears to have been presented to the district court, and by it decided, was on the admissibility of the proof offered by the defendant in support of his counter-claim. The court held that such proof was not admissible, and rejected the counter-claim as not allowable in such action. The error complained of is the rejection of this proof, and the refusal to allow the counter-claim. •

The counter-claim, as pleaded, contained all the allegations necessary to show the defendant entitled to damages for a fraud practiced by the mortgagee on the mortgagor in the sale by the former to the latter of the mortgaged premises, and the proof offered was such as fully to sustain those allegations. The single question before us, therefore, is, whether, in an action by a mortgagee against his mortgagor, for the sale of mortgaged premises, the mortgage being given to secure the payment of the purchase money, the mortgagor is entitled to the benefit of a counter-claim for damages, for fraud practiced by the mortgagee in the sale of the premises by him to the mortgagor.

By section 93 of the code of civil procedure (S. & C. Stat. 978), it is provided that: “ The defendant may set forth in his answer as many grounds of defense, counter-claim, and setoff, as he may have, whether they be such as have been heretofore denominated legal or equitable, or bothand in the following section it is provided, by way of limitation or restriction, that: “ The counter-claim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

It seems to us that in this case the allegations in the answer, and the proof offered in their support, come within the express terms, and also within the spirit of these provisions of the code. The leading object of the statute was, to provide, where the parties were so before the court as that it could well be done, that the rights and claims of the defendant, growing out of a transaction, should be heard and settled in the same suit in which the plaintiff asserted his claims, arising from the same transaction; thus avoiding multiplicity of suits, and sometimes securing better justice between the parties. We see no difficulty in the way that would have prevented the district court from hearing and determining the defendant’s counter-claim; ' and we think they should have heard his proof in support of it. The judgment of the district court is therefore reversed, and the case remanded for further proceedings.

Brinkerhofe, C.J., and Scott, Rannet, and White, JJ., concurred.  