(No. 65.) Counter-claim by landlord, admitted to defend an action brought against his tenant to recover possession of real estate, setting up that the premises in dispute are parcel of a tract of land sold by plaintiff to him, and by mistake omitted in the deed of conveyance, praying a reformation of the deed, and that his title be confirmed.1 Title of the Cause. The defendant, J. D., who is admitted by the court, on his application, by order made at, &c., on, &c., to come in and defend this action, for separate answer to the complaint of the plaintiff, alleges. [Here set forth the facts in the same way as in the answer of the tenant, No. 42, Part IV., ante, p. 604, and conclude with the prayer for affirmative relief.] Wherefore the said defendant, by way of counter-claim, asks affirmative relief, and demands judgment that the said deed of conveyance from the plaintiff to him be reformed and corrected, and be made to conform to the agreement The provision of the statute (2 R. S., 3d ed., 435, § 17), allowing a landlord, on his own application, to come in and defend in an action of ejectment, it has been held, prevails under the Code. (Godfrey v. Townsend, 8 How., 398; section 122, Code; and see Pleadings, 176-179.) The answer in the present case is designed to set up, by way of counter-claim, asking affirmative relief, precisely the same defence interposed by the tenant as a bar to the recovery of possession against him. (See No. 42, ante, p. 604.) In an action to recover possession of land, the defendant may, under the Code, set up facts entitling him to have the deed, under which the plaintiff claims, reformed on the ground of mistake, &c., and may have such reformation adjudged. (Bartlett v. Judd, 23 Barb., 262.) and intentions of the parties thereto, by correcting the description of the premises therein mentioned, so that such description shall be made to embrace and cover the premises mentioned and described in said complaint, and that the title of said plaintiff to said premises be confirmed, and his possession therein, and the possession of those claiming by, through or under him, be quieted, or for such other or further relief in the premises as shall be just and equitable, with costs of action.' (No. 66.) Equitable counter-claim, in answer in an action to recover possession of real estate, setting up that defendant was lessee of plaintiff's grantor, and that, not being able to read or write, he, by agreement with plaintiff, gave up to plaintiff the remainder of his lease, contrary to his intention, praying to have the agreement delivered up to be canceled; an account taken of land taxes wrongfully paid by him, and the original lease confirmed. Title of the Cause. Second. And for a second and further defence, the defendant alleges and states, that on the day of It is to be observed that the answer of the tenant, ante, p. 604, though setting up the same facts, is defensive merely, and requires no reply. The foregoing answer, however, asking affirmative relief, or, in other words, containing in itself a cause of action against the plaintiff, is properly what the Code denominates a "counter-claim," and a reply is necessary, otherwise the allegations are deemed admitted. 2 This answer is adapted to our present system from a form of a bill in chancery (see Curtis's Eq. Precedents, p. 22), containing the same prayer and asking an injunction to restrain proceedings by the certain indenture of lease was executed by one E. L., and delivered to the defendant, of the same premises mentioned and described in said complaint, whereby the said E. L. did, &c., [stating the lease, or setting forth a copy of the same], as in and by said lease, to which defendant prays leave to refer, will more fully appear. And the defendant alleges, that he thereupon entered upon and possessed the said lands, under and by virtue of said lease, and that subsequently, to wit, on the day of, the plaintiff in this action became, by purchase from said E. L., or otherwise, seized of and entitled to the reversion of said premises, subject to the said lease. years And the defendant further alleges, that no notice was ever given to him to determine or make void the said lease at the end of from the commencement of the said term of years, thereby demised, pursuant to the proviso therein contained, or otherwise, but upon the expiration of such years the said plaintiff proposed to the defendant to enter into a new agreement as to the said premises, giving defendant to understand that his interest therein was determined. And the said plaintiff upon that occasion, as he had frequently done before, expressed great friendship for the defendant, and declared it was his wish and intention that he, the said defendant, should continue in possession of said premises as long as he lived. And the defendant further states, that he can neither write nor read; that fully believing his interest in said lease was determined, and that said plaintiff, in whom he present defendant in a separate action commenced by him. An injunction in such case cannot now be sought in a separate action, but the defendant must interpose his defence by way of counter-claim in the original suit. As to setting up an equitable defence to a legal cause of action, see Pleadings, 569 to 579. had the utmost confidence, was dealing fairly by him, and was not intending to take any advantage of him, he consented to enter into the new agreement proposed by the plaintiff, and thereupon said plaintiff caused such agreement to be reduced to writing, and the plaintiff set his mark thereto, but the same was not read over or in any manner explained to him, and was in the words and figures, following, [set forth the agreement to surrender the premises after remaining therein one year, and paying the land tax, which defendant, by the original lease, was not bound to pay.] And this defendant further alleges, that confiding in said plaintiff's representations and professions of friendship, and in his declarations that it was his wish that he, the said defendant, should, as long as he lived, continue on said premises, he the said defendant proceeded to expend considerable sums of money in the erection of out-buildings, and in other improvements upon said premises. the said plain That on or about the day of tiff informed the defendant that he must either pay an advanced rent of $, or deliver up possession of said premises, and the defendant having refused to comply, the said plaintiff, on the day of, caused a notice to quit the said premises to be served on the defendant, which notice, the defendant not regarding, the said plaintiff subsequently brought this action against him. And the defendant avers, that it was not until after the service of such notice to quit, that his attention was called to the fact, by having the original lease read to him, that said lease was to determine at the end of the first years without months' previous notice; and that in default of such notice, it was therein covenanted and agreed that the same should be continued for the further period of years. And the defendant further alleges, that since he became so informed, and before the commencement of this action, he repeatedly applied to the said plaintiff and requested him to deliver up the said agreement of the day of day of , to be canceled, and to confirm the said indenture of lease of the and to return to the defendant the land tax which he hath paid in respect of the said premises, since the making of said agreement, and which he was thereby bound to pay, and has paid, although he was not liable to pay it by the said indenture of lease, with which just and reasonable requests the said plaintiff wholly refused to comply, and still refuses to comply with the same, or any part thereof. day of day of Wherefore the defendant demands, by way of counterclaim against the said plaintiff, judgment that the said agreement of the may be adjudged to be delivered up to the defendant to be canceled, and that said plaintiff may confirm the said indenture of lease of the that an account may be taken of what the said defendant has paid for land taxes of the said premises since the making of said agreement; and that said plaintiff may be adjudged to repay the same to the defendant, and that said plaintiff may also be restrained from commencing or prosecuting any action or proceedings against this defendant, or any person claiming under him, to recover the possession of said premises, until the expiration of the full term of years, mentioned in said original lease, unless the same shall be sooner terminated, with such other or further relief as to the court shall seem meet and proper, with costs of this action. |