Opinion of the Court-Burnett, J. This is an appeal from a judgment of nonsuit, granted on motion of the plaintiff, after issue joined and before proceeding to trial. The defendant resisted the motion, on the ground that he had pleaded a counter-claim, and relied on subdivision 1 of 2 243 of the Code (made applicable to suits by 398), which provides that a judgment of nonsuit may be given against the plaintiff, on his own motion, "at any time before trial, unless a counter-claim has been pleaded as a defense." The facts are stated in the opinion of the Court G. W. Lawson and Thayer & Williams, for Respondent. W. W. Upton, R. P. Boise, and P. C. Sullivan, for Appellant. By the Court, BURNETT, J.: The substantial question presented by the motion to dismiss is, whether any counter-claim to the plaintiff's cause of suit is set up in the answer. Unless the facts there alleged constitute a counter-claim, the judgment of nonsuit on the motion of plaintiff was properly granted. This is not an action arising on contract, but is strictly a suit of equitable cognizance. The counter-claim, therefore, which the defendant is authorized to interpose, must be one upon which a suit might be maintained by the defendant against the plaintiff in the suit, and must be connected with the subject of the suit. (See Code, 389.) The legal title to the land in question is alleged by the complaint to be in the defendant. The plaintiff claims the equitable title, and bases her claim for relief on three grounds, to wit: agency, fraud, and trust. The defendant's answer denies the agency, denies the fraud, and denies the trust, and denies the indebtedness claimed under them. The answer alleges that defendant paid one thousand two hundred and twenty-five dollars for the premises; also, that defendant made improvements thereon of the value of nine hundred and sixty dollars. That the plaintiff had cut and destroyed timber growing on said land to the amount. Opinion of the Court-Burnett, J. and of the value of five hundred dollars, and that defendant is justly and legally the owner of said parcel of land, in fee. The term counter-claim seems to be a word of modern invention; and it is said by some of the text-writers that neither the professional nor the judicial mind has as yet fully settled the meaning and true interpretation of this term. But it may be safely said to partake of the nature both of set-off and of recoupment. It is said in Matoon v. Baker (24 Howard, 330), that a counter-claim, to be available to a party, must afford him protection in some way against the plaintiff's demand for judgment, either in whole or in part. It must, therefore, consist in a set-off, or claim by way of recoupment, or be in some way connected with the subject of the action stated in the complaint. It must present an answer to the plaintiff's demand for relief; must show that he is not entitled, according to law, or under the application of just principles of equity, to judgment in his favor as, or to the extent, claimed in the complaint. It must, therefore, contain not only the substance of what is necessary to sustain an action in favor of the defendant against the plaintiff, but it must also operate in some way to defeat, in whole or in part, the plaintiff's right of recovery in the action." This would seem to be a very fair statement of the office of a counter-claim. When a defendant sets up a counter-claim in pleading, he assumes that the plaintiff has a cause of action or suit against him, and proposes to meet it by establishing another cause of action or suit against the plaintiff. But here the defendant says that the plaintiff never had any cause of suit against him, and it would seem strange for a defendant to set up a counter-claim where there was no claim existing in favor of the plaintiff. If the defendant had denied the fraud, but admitted that he purchased the land for the plaintiff and then set up the amount he paid for the land and the amount paid for the improvements made on the place, and asked to have these amounts made a charge upon the land, these would be proper matters upon which he Opinion of the Court-Burnett, J. could maintain a suit against the plaintiff, and would be the basis for a counter-claim; but when he denies that he purchased for the plaintiff, and alleges that he purchased for himself and is the owner in fee of the land in dispute, he has no ground for setting up a claim for purchase-money for, or improvements on, his own land. Suppose, that, instead of the plaintiff bringing this suit, the defendant had sued the plaintiff, alleging that he had purchased the land in question in trust for the plaintiff, and claiming that she should repay him the purchase-money and compensate him for the improvements made thereon by him, and take a deed, and she should answer, denying that he purchased for her, or that she had anything to do with his buying it, it would hardly be contended that she could then set up as a counterclaim that he should make a deed to her, and that his use of the place was sufficient to repay him his purchase-money, and for the improvements made thereon. The claim for damages for cutting and destroying growing timber on the premises is objectionable, on the ground that it could not be maintained against the plaintiff alone, as it appears that she is a married woman, and it would only be ground for an action and not the subject of a suit. The defense of the defendant, that he is the owner in fee of the land in dispute, cannot, we think, be treated as a counter-claim, for the reason that it is not connected with the subject of the suit; it is an entirely separate and distinct matter; has no dependence upon, or in any manner arises out of the subject of the suit. The subject of the suit here is fraud, agency, and trust, and it is difficult to see how Hayden's title to the land in dispute grows out of either. He might, under that allegation, in a complaint founded on 2 500 of the code, show that he had a deed from the plaintiff prior in time to the mortgage mentioned in the complaint, or that he held title from the government superior to the title of the plaintiff. The code, in allowing counter-claims in suits in equity, seems to have adopted substantially the rule in regard to filing cross-bills. Under the former chancery practice, the cross-bill could only relate to matter touching the matters 5 504 11 59 11 60 4* 588 4* 589 Statement of Facts. in the original bill. It could not embrace new and distinct matters not embraced in the original bill; and if it did, no decree could be founded upon such new matter. (8 Cowen, 361.) The judgment of the court below is affirmed. J. W. TRUTCH, APPELLANT, v. D. D. BUNNELL, GUAR- ENTS. GUARDIAN MAY MORTGAGE WARD'S ESTATE. -Under subdivision 6, § 869 of the Civil Code, which confers upon County Courts jurisdiction "to order the renting, sale, or other disposal of the real and personal property of minors," the County Court is authorized to order the mortgaging of a minor's real estate. IDEM-MANNER IN WHICH NOTE AND MORTGAGE MAY BE EXECUTED.-In proceedings to foreclose a mortgage against a minor's real estate, the fact that the note and mortgage sued upon are not executed by signing the minor's name thereto, but by signing the name of the guardian as such, is no defense. ADVERSARY PARTIES-WHEN MINORS ARE NOT.-In proceedings before the County Court, by a guardian, to obtain an order to sell or mortgage the estate of minors, such minors are not adversary parties to their guardian, but they appear by him, and the proceedings are upon their application. APPEAL from Multnomah County. This is a suit to foreclose a mortgage for twelve thousand dollars in gold coin, executed by D. D. Bunnell, as guardian of certain minors, against the real estate of such minors. The mortgage was executed in pursuance of an order of the County Court, duly made. The court below dismissed the appellant's complaint on the ground that the County Court had no authority to order the mortgaging of a minor's estate. Page, Yocum & Robb, for Appellants. C. Beal, guardian ad litem, and counsel, for minor Respondents. Opinion of the Court--Bonham, C. J. By the Court, BONHAM, C. J.: The appeal in this case presents, for the consideration of this Court, two principal questions. First. Do the statutes of Oregon invest our County Courts, sitting in probate, with authority to order the mortgaging by a guardian of the real estate of his ward. Second. If such power is vested in the County Courts, does the record evidence in this case, offered by appellant, show that the County Court of Multnomah County had acquired jurisdiction to make the order authorizing Bunnell, the guardian of the minor respondents, to mortgage the real estate in question. The first proposition we think only necessarily involves the construction of certain provisions of our statute defining and limiting the jurisdiction of County Courts and declaring the duties of guardians. Section 869 of the Civil Code declares that "the County Court has the exclusive jurisdiction in the first instance pertaining to a court of probate, that is, Subdivision 6. To order the renting, sale or other disposal of the real and personal property of minors." * * * * It was suggested by the guardian ad litem of the minor respondents, on the argument of this cause, that the provisions of 869 above referred to were simply abstract declarations of the jurisdiction of the County Court and ought not to be regarded as operative and effective law without further and more specific legislation on the subject. This position we do not think is tenable. While it is true that the statute defining the duties of guardians of the persons and estates of minors makes no reference to the particular manner of proceeding by the guardian to procure an order of the County Court for leave to mortgage his ward's real estate, yet we think the law on this subject, taken altogether, is sufficiently explicit to point out with reasonable certainty the proper manner of proceeding in such a case. The proceedings by Bunnell, the general guardian in this instance, was properly had in analogy to the manner of proceeding provided by chapter 51 of the Miscellaneous Laws to obtain a license to sell the real estate of a minor. |