
    Lewis v. Denton.
    1. Set-off : assigned note. In an action by the assignee of a note duly assigned, the defendant cannot, while the action thus stands, litigate a set-off against the assignor by simply averring that he is the real party in interest.
    2. Same : no defense. A set-off is not a defense — it is the defendant’s cause of action against the plaintiff.
    
      Appeal from Johnson District Court.
    
    Wednesday, June 18.
    Bill to foreclose a mortgage executed by Robert Denton to secure the payment of a certain promissory note payable to Miles K. Lewis, by whom it was assigned to plaintiff. The mortgaged premises, having been, subsequently to the execution of the mortgage, sold to Abby Denton, she was made a party defendant. The defendant, Robert Denton, answered, alleging that the assignment to plaintiff was without consideration, and for the purpose of avoiding a set-off against the note, if it remained in the hands of the original payee; and claimed of Miles Lewis as “the real party in interest in the said promissory note, the sum of three hundred dollars,” damages, for waste committed on the premises described in the mortgage. To this answer the defendant demurred on the ground that it set up a cause of action against a person not a party to this suit ; and that the claim set out did not constitute a defense to this action. This demurrer was sustained, and defendant appeals.
    
      Clark & Bro. for the appellant.
    
      Mackey & Bradley for the appellee.
   Wright, J.

A set-off is not a defense to an action. It is the defendant’s action against plaintiff, and plaintiff’s right to recover upon his cause of action is in no manner affected by such set-off.

If, therefore, an action is brought upon a note, duly assigned, in the name of the assignee, the defendant cannot, while the action thus stands, ask to litigate a set-off against the assignor, by simply averring in his pleadings that such assignor is the real party in interest. He is not a party to the record, and no judgment could be taken against him on such set-off, and substantially defendant asks such judgment when he pleads his set-off.

The demurrer was properly sustained.  