"Al of June, they acknowledged the receipt from said sheriff of the further sum of $3,822.69, the amount of the foreclosure judgment, with interest. The complaint further states "that as a matter of fact the said Reese & Carter did not receive any sum whatever from said sheriff, but that said Reese bid in the mortgaged property to satisfy the debt due on said mortgage, and that he so bid it in as attorney for the receiver, in trust for said Lockwood and Gates, and took a sheriff's deed of the premIses described in the mortgage," giving a full description of the mortgaged property described in said sheriff's deed. The complaint then concludes as follows: though demand has been made upon said Reese to convey or account for the property so held in trust by him for the legal representatives of James M. Lockwood, he re-. fuses and neglects so to do. Wherefore the plaintiff prays that said Samuel Reese may be compelled to execute to this plaintiff a proper deed of conveyance of such share of the mortgaged premises as will satisfy the said sum of $524.74, and interest at the same rate as computed in augmenting the original indebtedness to $3,822.69, which includes the $524.74, and interest, and also interest from the date of sale to said Reese at the rate of seven per cent. per annnum, and for such other and further relief as to the court may seem just and equitable." To this complaint the defendant demurred, alleging the following causes of demurrer: “(1) That the plaintiff has not legal capacity to sue; (2) that there is a defect of parties plaintiff and defendant; (3) that several causes of action have been improperly united; (4) that the complaint does not state facts sufficient to constitute a cause of action; (5) that the action was not commenced within the time limited by law." The plaintiff moved the court for an order striking out the demurrer as frivolous. The circuit court granted the motion, with leave to the defendant to answer within 40 days, upon the payment of costs of the motion. From this order the defendant appeals to this court. this action. To succeed to the right of her husband at his death, it is said the widow must either show she is his sole heir, or, if she sues in her representative capacity, she must show that the real estate she seeks to recover as administratrix is necessary for the discharge of the debts of the deceased; and as neither of these facts is alleged in the complaint, the plaintiff has failed to state a cause of action, either in her representative capacity or in her capacity as widow of the deceased. If she seeks to recover in this action as inheriting the right of the deceased, it is clear that she fails to make out a case, unless she alleges in her complaint that she is the sole heir. Whether the facts stated would entitle her to recover in her representative character, if the allegations in her complaint showed that the defendant held the real estate in question in trust for her deceased husband, we need not decide in this action, for the reason that the facts stated fail to show any such holding in trust for Lockwood and Gates, or for either of them. The facts stated show with sufficient clearness that the title to the mortgage in question was transferred to the receiver, Strong, by virtue of his appointment as such receiver in the action set out in the complaint. The facts stated show that the foreclosure action was carried on in the name of the receiver, and upon the facts stated as to the bidding in of the property by Reese they show that in law the property was bid in for the benefit of the plaintiff in that action, viz., the receiver, and if Reese holds the property in trust for any one, he holds it in trust for the receiver, the plaintiff in that action, and must account to him for it, and not to the plaintiff. The allegation in the complaint that Reese bid in the property in trust for Lockwood and Gates is a conclusion of law not warranted by the facts stated. It seems very clear to us that the plaintiff should have sought her rights in the action in which the receiver was appointed. There is nothing appearing in this case which tends to show that she could not have secured her rights in that action, but if there were any reasons shown why her rights could not be secured by an application to that court to have the receiver account for the money collected on the mortgage, or for the property obtained by such foreclosure, then, upon a proper application to that court, it is quite certain such court would permit the plaintiff to commence such action against the receiver and other persons as might be necessary to secure her rights. Noonan v. McNab, 30 Wis. 277; In re Day, 34 Wis. 638; Railroad Co. v. Railroad Co., 20 Wis. 165; 2 Wait, Pr. 261, and cases cited. In the absence of any reasons shown for not proceeding against the receiver, or any allegations showing that a proceeding against the receiver would not be an adequate remedy, it is clear to us this action cannot be maintained. The order of the circuit court, striking out the demurrer, is reversed, and the cause is remanded for further proceed Upon this appeal, according to the wellestablished rule of this court, the order will be ɛustained, if the complaint states a good cause of action against the defendant, whether the demurrer be frivolous or not. The real ground of demurrer is that the complaint does not state a cause of action in favor of the plaintiff against the defendant. After a careful consideration of the facts alleged in the complaint, we are forced to the conclusion that no cause of action is shown in favor of the plaintiff against the defendant. The learned counsel for the appellant contends that if it be admitted that there are facts enough stated to show that the defendant, Reese, bid off said mortgaged property in trust for the mortgagees, Lockwood and Gates, still the plaintiff does not show by her complaint that there has been such a devolution of the right of Lockwood to the plaintiff by the mere fact that he died intestate, possessed of the right to the trustestate, as would entitle her to maintainings according to law. (76 Wis. 450) HANF et al. v. NORTHWESTERN MASONIC AID ASS'N. (Supreme Court of Wisconsin. April 8, 1890.) EVIDENCE-TRANSACTION WITH DECEDENT-INSURANCE. 1. Rev. St. Wis. § 4069, which excludes the testimony of a party, or the person under whom he claims, as to transactions had by him personally with a deceased or insane person, under whom his antagonist claims, does not exclude the testimony of an agent of such party. 2. The rules of a mutual aid association forbade the insurance of any person over 50 years old. Where the agent thereof and the insured, both knowing of this restriction, conspired together to falsely represent that the applicant was under 50 years, the company is not bound by the agent's acts, and there is no waiver of the restrictions. 3. It is immaterial whether certain documents were erroneously admitted to prove a person's age, when the fact was sufficiently established by other evidence. Appeal from circuit court, Lincoln county; CHARLES M. WEBB, Judge. The defendant, the Northwestern Masonic Aid Association, issued to Carl Hanf a certificate of life insurance in class No. 4, in a sum equal to $1.20 for each member of such class, but not to exceed $2,500. The certificate bears date April 27, 1881. Carl Hanf died May 2, 1888. This action was brought by his children, who are named in his application for the insurance as the beneficiaries thereof. One of them, E. F. Hanf, joined in bringing the action as well in his own right as the executor of the last will and testament of his father. The complaint contains averments showing that class No. 4 was sufficiently large to make the insurance $2,500. In his application for the insurance, Carl Hanf stated his age to be 49 years, and stated the date of his birth to have been June 29, 1831. Such application contains an agreement, signed by Carl Hanf and the agent of the insurance company, to the effect that if the application contained any misrepresentations, or if any fraudulent or untrue answers were made therein, the agreement for insurance should be null and void, and all moneys paid thereon forfeited to the association. The bylaws of the association require that applicants for membership should not be more than 50 years of age. The claim is contested on the ground that when he made such application Carl Hanf was over 50 years of age. The testimony on the question of age is stated in the opinion, as are also the material rulings of the court on objections to the admission of testimony. By direction of the court a verdict was rendered for the defendant. A motion for a new trial was denied, and judgment for defendant entered pursuant to the verdict. The plaintiffs appeal from the judgment. Flett & Porter and Bump & Hetzel, for appellants. Curtis & Curtis, for respondent. LYON, J., (after stating the facts as above.) If the testimony of the local agent of the defendant association, through whom the insurance was obtained, is competent, it proves conclusively that Carl Hanf was over 50 years of age when the certificate of insurance in suit was applied for and issued, to the knowledge of both him and the agent, and that at the solicitation of Hanf the agent conspired with him to misrepresent his age to the association in order to obtain the insurance; also that both knew the association would not issue the certificate if informed of the true age of the applicant. The truth of the last statement is proved by the fact that Hanf made an earlier application for insurance to the association, through the same agent, in which it was stated that he was born June 29, 1830, and was 50 years of age, and the application was rejected by the association for the sole reason that he was over the prescribed age. The learned counsel for plaintiffs submitted an elaborate and ingenious argument to show that, under section 4069, Rev. St., the agent was not a competent witness to prove the statements of Hanf. That section only excludes the testimony of a party to the action, or the person under whom he derives his title to or interest in the subject of the action, of transactions and communications had by him personally with a deceased or insane person, through whom the opposite party claims or defends. It does not exclude the testimony of the agent of the party or person whose testimony is thus excluded. At the common law the testimony of a party to the action was absolutely excluded, but the agent of such party was a competent witness to prove the whole cause of action or the defense, although the opposite party derived his interest in the subjectmatter of the controversy through a deceased person. Section 4069 does not exclude testimony which was admissible at the common law. We find no adjudication which sustains the contention of counsel, and it is clearly unsound in principle. It is further contended that in the present case the agent effectually waived the provision of the by-law of the association excluding applications for insurance by persons 50 years old and upwards, and that the association is bound by such waiver. It is claimed that Morrison v. Insurance Co., 59 Wis. 162, 18. N. W. Rep. 13, sustains this proposition. In that case a fraudulent misrepresentation of his age was made by the insured. After the insurance company was chargeable with notice of the fraud, it continued to make assessments upon the insured, from time to time, which he paid. This was held a waiver of the right to declare the insurance forfeited. In this case the first knowledge the defendant association had of the fraud was when it received proofs of the death of Hanf, signed and sworn to by each of the plaintiffs, in which it is stated positively that Hanf was born June 30, 1827, and hence was over 53 years old when the certificate of insurance was issued to him. The association thereupon immediately repudiated liability upon the certificate. It also tendered to the executor of Hanf's estate a return of all assessments paid by him upon such certificates, which, by the terms of the contract, it was under no obligation to do. The Morrison Case is perhaps the strongest one cited in support of the claim of waiver, and that case falls far short of sustaining the claim. In the present case both Hanf and the agent Appeal from circuit court, Grant county. Plaintiff appeals from an order overruling his demurrer to the answer of defendant Hooser. Bushnell & Watkins, for appellant. Murphy & Gardner and Orton & Osborn, for appellee. TAYLOR, J. The appellant brought an action in the circuit court, under section 3186, Rev. St., to establish the validity of the lien of a mortgage held and owned by the plaintiff upon certain real estate, the possession of which was in the respondent Hooser, and claimed to be owned by him. The appellant sets up the mortgage, and alleges that it was executed and delivered for a valuable consideration by one John of the association knew that the by-laws limited insurance therein to persons under 50 years of age at the time of the application, and that the association would not insure Hanf if it knew he was over that age. They also knew that Hanf was over 50 years old, and that the agent had no authority to waive the by-law. Know. ing the above facts, these two men entered into a conspiracy to defraud the association, and in pursuance thereof made the application upon which the certificate was Issued, and, by falsely stating that the age specified in the first application was so stated by a mistake of the agent, (in whom the company evidently had confidence,) prevented all suspicion of fraud. If there is a case in the books which holds that a principal is bound by the unauthor-Hunt, who at the time was the owner of ized and fraudulent acts of his agent, done and performed pursuant to a corrupt conspiracy between such agent and the person who seeks to obtain the benefit of the fraud, we have not found it. If there is such a case, we decline to incorporate the doctrine of it into the jurisprudence of this state. On the question of the age of Hanf the court admitted in evidence, against the plaintiff's objection, the proofs of loss as an admission by the plaintiffs of the true age of the assured. The court also admitted, against like objection, what purports to be an authenticated certificate of the birth of Hanf, as shown by a church register in Germany, wherein it is stated that he was born June 29, 1827. The competency of such evidence was discussed by counsel in their arguments at considerable length. It is not necessary to pass upon the question, because the defense was fully proved without resort to either of those documents, and it is entirely immaterial whether they were erroneously admitted or not. If they are both stricken from the case, it was still proper, under the competent and undisputed testimony, for the court to direct a verdict for the defendant. The judgment of the circuit court is affirmed. (76 Wls. 287) WILSON V. HOOSER et al. 1. Plaintiff sued to establish upon lands possessed by one of the defendants the validity of a mortgage, which he alleged defendant claimed to be void because given by the vendee of a sale made in fraud of his rights as a creditor. Defendant counterclaimed, praying that the mortgage be adjudged vold, setting out facts which show that the sale was fraudulent, and stating that the mortgagor knew it to be so. He also averred that the land had been sold under a judgment which he obtained against the vendor; that he had bought it in at sheriff's sale; and that, in a suit in ejectment brought by him upon the sheriff's deed against the mortgagor, the sale had been adjudged void. Held, the answer states a sufficient cause of action under the first clause of Rev. St. Wis. § 8186, which provides that one in possession of lands under legal title may sue to test the validity of an alleged lien thereon. 2. A mere defense to the complaint would not afford defendant the relief he is entitled to under the counter-claim, and plaintiff might at any time prevent all affirmative relief by dismissing the sult said real property mortgaged. It then alleges that since the giving of said mortgage the respondent obtained the possession of said real estate from said Hunt, and now holds such possession, and claims to hold it free and clear from the lien of such mortgage, basing such claim on the alleged fact that Hunt acquired his title to such premises in fraud of said Hooser's rights as a creditor of one William J. Penny packer, who conveyed the premises to Hunt to defraud his creditors, which Hunt then knew. The complaint alleges that the plaintiff bought the notes and mortgage in good faith. "The plaintiff prays judgment that his said mortgage be established against any claim of the defendant Hooser, and that Hooser be forever barred against having or claiming any right or title adverse to plaintiff's said claim." The defendant answered, by way of counter-claim, that on January 29, 1877, William J. Pennypacker was the owner of said premises, and on that day defendant loaned Pennypacker the sum of $2,070, for which Pennypacker gave his note to the defendant, due one year from date; that when said note became due the defendant commenced an action on said note against said Pennypacker, and on September 29,1879, he recovered judgment thereon against said Pennypacker for the sum of $2,371.75, which judgment was duly docketed on said day; that on June 7, 1880, execution was issued on said judgment and placed in the hands of the sheriff, and by virtue of said execution said premises were levied upon and sold to the said defendant Hooser, and there having been no redemption from such sale, on February 18, 1882, the sheriff, in pursuance of such sale, conveyed said lands and premises to the defendant by a good and sufficient deed. The defendant then alleges in his counter-claim "that on the 26th of September, 1878, the said Pennypacker was insolvent, and had no other property except said land, and that to defraud his creditors he did on that day, without any consideration therefor, convey said land to his wife, Mary C. Pennypacker; that on September 28, 1880, she and said William J. Pennypacker, for the sole purpose of defrauding said Hooser and other creditors of said William J. Pennypacker, conveyed said lands to said John Hunt, and took back from him, as security for the purchase money, the notes and mortgage set forth in the plaintiff's complaint; that Hunt bought such premises with full knowledge of the rights of Hooser and of the said fraudulent intent of the Pennypackers; and that he participated in such fraud." It is further alleged that Hunt went into possesion of said premises un der his conveyance from the Pennypackers, and that afterwards the defendant brought an action of ejectment, basing his title on said sheriff's deed against said Hunt, an in said action he recovered possession of the said land and premises by a judgment in that action in February, 1887, and has ever since been in possession of said land; that in said action the title of the said Hunt was held fraudulent and void as to the defendant; that such judgment remains in full force. It is further alleged that, at the time of the transfer of the notes and mortgage to the plaintiff, he had full notice of all the facts aforesaid, and of Hooser's rights, and of the fraudulent character of Hunt's title, and that such transfer was made by the Pennypackers, and received by the plaintiff, with the intent to defraud said Hooser and other creditors of William J. Pennypacker, and to place the latter's property beyond the reach of his creditors. In said counter-claim it is also alleged that, after the notice of lis pendens was filed in said ejectment action, said Hunt deeded the land in question to the plaintiff, and that plaintiff was in the receipt of the rents and profits of said land when said action was tried, and that he employed counsel in said action, and undertook and managed the defense thereof, and was the real party in interest therein. The defendant prays judgment that the plaintiff and defendant Nathan take nothing by this action; that such notes and mortgage be adjudged null and void as against the defendant Hooser; and that he be adjudged the owner of the premises in fee-simple absolute, freed of all liens and incumbrances set forth in the complaint, and for other relief. The plaintiff demurred to the counter-claim (1) because there is another action pending between the same parties for the same cause; (2) because the counterclaim does not state facts sufficient to constitute a cause of action; (3) because the cause of action stated is not pleadable as a counter-claim to this action. The circuit court overruled the demurrer, and from the order overruling the same the plaintiff appealed to this court. This action on the part of the plaintiff, if maintainable at all, must be maintained under the last clause of section 3186, Rev. St. The complaint showing that the plaintiff is not in possession of the land which is the subject of the controversy, he cannot maintain an action under the first clause of said section. The last clause of said section reads as follows: "And any person not having such title or possession, but being the owner and holder of any lien or incumbrance on land, shall also have the same right of action as the owner in fee, in possession, to test the legality and validity of any other claim, lien, or incumbrance on such land, or any part thereof." On a former appeal by the plaintiff from an order sustaining a demurrer to the complaint, this court held that the complaint stated a cause of action under the last clauses of said section above cited. See Wilson v. Hooser, 72 Wis. 429, 39 N. W. Rep. 772. We think there can be no doubt on the question as to whether the counter-claim states facts sufficient to constitute a cause of action. The facts stated by the defendant in his counterclaim would certainly be a good cause of action under the first clause of said section 3186, Rev. St. He alleges possession and the legal title in himself to the lands in question, and states facts showing that the plaintiff is setting up a claim to said land, or a lien by mortgage thereon, and alleges that such claim is fraudulent and void as to his title. If, upon the trial upon such a complaint, the plaintiff succeeded, he would clearly be entitled to the relief authorized in the first clause of said section. It seems to us wholly unnecessary to cite authorities on this point. The objection that there is another action pending between the parties for the same cause has no foundation in fact, unless it be based on the contention that the plaintiff's complaint in this action is such other cause of action, and that all the rights of the defendant can be adjudicated upon a denial of the facts stated in such complaint. The objection that there is another action pending between the same parties for the same cause might, possibly, be a good ground of demurrer to a counterclaim even when such other action was the same action in which the counterclaim was pleaded, if under the issues made in the action before the counter-claim was pleaded all the rights of the defendant in such action could be adjudicated and pro tected. The objection to the counter-claim that the cause of action stated therein is not pleadable as a counter-claim in this action is really the only one which was urged upon the court on the hearing of this appeal. The argument is that a mere defense to the plaintiff's cause of action would afford the defendant all the relief that he can obtain under his counter-claim, and therefore the counter-claim is wholly unnecessary. It is also argued that the counterclaim does not contain any new matter not set up in the complaint, and therefore is not well pleaded as a counter-claim. We cannot agree with the learned counsel in either of his contentions. On pleading mere defensive matter to the plaintiff's complaint, the defendant could not obtain any final adjudication of his rights in the action, or the relief he is entitled to under said section 3186, Rev. St. The plaintiff could always defeat a final adjudication of the rights of the defendant by withdrawing or dismissing his action, and the only satisfaction the defendant would have would be the satisfaction of knowing that the plaintiff would pay the costs. This fact alone is sufficient to show that, if the defendant has in fact a good cause of action against the plaintiff, under which he is entitled to affirmative relief, and such cause of action arises out of the transaction set forth in the complaint or is connected with the subject of the action, then he may plead it as a counter-claim. In this case the defendant's counter-claim is not only connected with the subject of the plaintiff's action, but it also arises out of the transaction set forth in the complaint. It is hardly necessary to answer the contention that there is no new matter set out in the counter-claim, and so it is bad on that account. The facts set up in the counter-claim are not stated in the complaint, and it was not necessary to state them in order to make out the plaintiff's case. This question as to the sufficiency of a counter-claim, and when it may be pleaded, is discussed to some extent in the case of Grignon v. Black, ante, 122, (not yet officially reported, decided at this term.) The order of the circuit court is affirmed, and the cause is remanded for further proceedings. (76 Win, 464) SKINNER et al. v. RICHARDSON, BOYNTON & Co. (Supreme Court of Wisconsin. April 8, 1890.) RELIGIOUS SOCIETY-POWER TO SUE AND BE SUED ESTOPPEL. 1. Priv. & Local Laws Wis. 1868, c. 379, makes the trustees of the Methodist Episcopal Church a body corporate, with power to sue and be sued; and Laws 1885, c. 385, so amends Rev. St. § 1997, as to make valid all corporations formed under the act of 1868. Held that, nothing appearing to the contrary, plaintiffs, who sue in their indi vidual names as trustees of the Barstow-Street Methodist Episcopal Church, are presumed to have been lawfully incorporated thereunder. 2. Rev. St. Wis. 5 8204, provides that corpora tions may sue and be sued, and the proceedings therein shall be the same as in the case of natural persons. But section 1995 provides that every existing religious society "shall continue to be governed by the statutes now applicable thereto, notwithstanding the same are repealed by this statute, in the same manner as if not so repealed, until organized under this chapter." Held, where the trustees of a religious society constitute an incorporated body with power to sue and be sued under Priv. & Local Laws Wis. 1868, c. 379, they may now sue in their individual names, and the society need not be joined in its corporate name. 3. Where the trustees of a religious society sue on a contract which the complaint alleges they made, but which the contract attached shows was made by their predecessors, in their individual names, the latter need not be joined in the suit. 4. One who has made a contract with the trustees of a religious society is estopped, in a suit thereon, from denying their authority to contract. Appeal from circuit court, Eau Claire county; E. B. BUNDY, Judge. V W. James and W. P. Bartlett, for appellants. Geo. C. & Fred A. Teall, for respondent. ORTON, J. The defendant demurred to the complaint on the grounds (1) that the plaintiffs have not legal capacity to sue; (2) that there is a defect of parties plaintiff, in not making the church a party plaintiff, and omitting the names of two trustees; and (3) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and this appeal is from the order sustaining the same. The complaint alleges, substantially, that the Barstow-Street Methodist Episcopal Church is a religious society duly organized under the laws of this state, and the plaintiffs are the trustees thereof, and were at all times alleged in this complaint, and that they entered into a written agreement about the 16th day of April, 1883, with the defendant, whereby the plaintiffs agreed to purchase of the defendant a certain furnace for the sum of $230, to be used in the church building of said church, in the city of Eau Claire, for heating the same, and the defendant guarantied that the church building could be heated in a good and comfortable manner with said furnace, and, in case it failed to so heat the same, the defendant agreed to take it out and replace it by another, larger furnace, and if that should not so heat said building the money paid should be refunded to the plaintiffs, and all money that they should pay, or had paid, for freight, cartage, and other charges. The plaintiffs paid to the defendant the said sum of $230, and performed their part of the contract in every respect, and the defendant put into said church building said furnace; but it entirely failed to so suitably heat the same. The plaintiffs notified the defendant to take it out and replace it with a larger furnace, and the defendant refused to do so. Thereupon, and more than 20 days before the commencement of this suit, the plaintiffs demanded the payment of said $230 by said defendant, which was refused. The written contract referred to was embodied in the complaint, and commenced as follows: "Agreement made this 16th day of April, A. D. 1883, between Richardson, Boynton & Company, party of the first part, and the trustees of the Barstow-Street Methodist Episcopal Church, party of the second part, witnesseth, "etc. The agreement is signed for the party of the second part by M. J. Lawton, Elisha Ross, and Oramel Walker. The names of the trustees in the title of the action are Anna Skinner, J. F. Tinker, M. J. Lawton, A. L. Buck, Phineas E. Bent, and D. W. Sherman. Sec 1. Have the plaintiffs the legal capacity to sue? The learned counsel of the respondent contends that by chapter 411, Laws 1876, and by the general statute of corporations, and for the incorporation of religious societies, in the Revised Statutes of 1878, the trustees are not a body corporate to sue and be sued. Chapter 89, Laws 1849, makes the trustees of the Methodist Episcopal Church a body corporate, with the power to sue and be sued tion 8 of chapter 66, Rev. St. 1858, makes the trustees of all religious societies a body corporate, with power to sue and be sued. Chapter 379 of the Private & Local Laws of 1868 makes the trustees of the Methodist Episcopal Church a body corporate, with the same power, and chapter 385, Laws 1885, so amends section 1997, Rev. St., as to make valid all corporations formed under the above chapter 379, Laws 1868. Section 1995, Rev. St., specially excepts from the provisions of that chapter corporations of religious societies, and confirms them, and provides that such as were created by previous laws shall be governed by the statutes now applicable thereto, notwithstanding their repeal, in the same manner as if they were not repealed, until they are organized under said chapter. It will be observed that there are genera and private statutes relating specially to the incorporation of the trustees of the Meth |