
    A. H. Reed vs. E. C. Newton.
    April 20, 1876.
    Counter-claim — Ejectment—Claim for Improvements, — In an action of ejectment,, allegations in the answer that defendant entered under an official deed, has. had no notice of any defects invalidating the deed, and has made improvements and paid taxes, are not admitted by failure to reply.
    Appeal by defendant from a judgment of the district court for McLeod county, where the action was tried before J. II. Broiun, J., acting for the judge of the eighth district, without a jury.
    
      Baxter & Child, for appellant.
    
      H. J. Bed, for respondent.
   Gileillan, C. J.

The action is in ejectment. The answer denies plaintiff’s title, and alleges that defendant entered by virtue of an official deed; that he has had no notice of any defect invalidating it, and has made improvements and paid taxes on the land since entering into possession, and on this part of the answer the judgment asked is that, if the title be adjudged to be in plaintiff, defendant recover the value of the improvements and amount of the taxes paid. There was no reply. The cause was submitted on the complaint and answer, and a stipulation that the plaintiff have judgment, and if the court, ‘ ‘ upon consideration of either or any of the questions that may be raised upon the validity or effect of any right claimed to éxist in favor of said defendant, by reason of the facts or matters alleged in tbe answer, shall be of opinion that said defendant shall be entitled to some modification or relief from such absolute judgment,” the court might direct such modification.

We do not regard this as an admission that the allegations of the answer are true, and the only question which the record presents for the court to consider is whether such allegations are admitted by failure to reply. The matters alleged do not constitute a counter-claim, for they do not constitute a cause of action. Gren. St. ch. 66, § 80. The act of 1873 (Laws 1873, ch. 55) does not make it necessary that there should be a reply, to put in issue the matter alleged in the answer, under that act, but only to set up new matter.

The facts alleged in the answer not being proved, no question could have been raised upon their effect.

Judgment affirmed.  