This was a mortgage foreclosure suit. From final decree in favor of plaintiffs, defendants have appealed. In the court below J.C. Bailey and T.L. Bailey were made parties defendant to the bill to foreclose the mortgage because, as it was alleged, they claimed some right, title or interest in and to the lands involved in the foreclosure. In their answer they incorporated a counter-claim against P. W. Wilkins Company, one of the defendants. P. W. Wilkins Company answered the counter-claim but later, after the taking of testimony and before decree, moved to dismiss the counterclaim, which motion contained the following grounds:
"1. The evidence and proof fail to show any connection between the claim set up in the so-called counterclaim and the mortgage which is the subject matter of this suit, and fail to show that it in anywise grew out of or is a result of the mortgage which is the subject matter of this suit.
"2. Because the so-called counterclaim is not properly connected in any manner with the subject matter of this suit in such a way as to permit one defendant to maintain a counterclaim against another defendant in the same suit.
"3. Because the statutes and rules governing procedure in chancery do not permit or in any wise provide for the maintenance of a counterclaim on the part of one defendant against a fellow defendant in the same cause of action." — and *Page 573 in the final decree the court adjudicated issues presented by the counter claim.
The appellant presents only three questions for our consideration. They are:
"(1) Does the record reveal such a design, conspiracy and unconscionable conduct by the plaintiff, Margaret K. Stoer, and the defendants C.H. Stoer and J.C. Bailey and T.L. Bailey to deprive the defendant P. W. Wilkins and Company of its right to redeem as to strip the bill of equity and good faith and deprive the plaintiff of her right to foreclose in these proceedings?
"(2) Should the court have adjudicated the counterclaim of two of the defendants (J.C. Bailey and T.L. Bailey) asserted solely against another defendant (P. W. Wilkins and Company)?
"(3) Were J.C. Bailey and T.L. Bailey entitled to possession of the land and to all rents, issues and profits thereof after the date of their contract to purchase from P. W. Wilkins and Company?"
We find reflected in the record no sufficient evidence of any design, conspiracy or unconscionable conduct on the part of the plaintiff and certain defendants named to deprive P. W. Wilkins and Company of its right to redeem as would result in stripping the bill of equity and good faith and deprive the plaintiff of her right to foreclosure of the mortgage.
Questions Two and Three apply to the propriety of the counter claim and the right of the counter-claiming defendants to any relief thereunder. Our conclusion is that the counterclaim should have been dismissed on motion made.
Counterclaim is a statutory remedy. The statute in this regard is Section 63.35 Fla. Statutes, 1941 (same F.S.A.) and is as follows:
"(63.35) (1). "WHEN COUNTERCLAIM MUST BE STATED IN ANSWER. The answer must state, in short and simple form, any counterclaim arising out of the transaction which is the subject matter of the suit, and may, without cross-bill, set out any counterclaim against the plaintiff which might be the subject of an independent suit in equity against him; and such counterclaim so set up shall have the same effect *Page 574 as a cross-suit, so as to enable the court to pronounce a final decree in the same suit on both the original and cross-claim."
In Hendricks et al. v. Williams et al., 151 Fla. 538,9 So.2d 923, we held:
"Under statute, a defendant may seek relief by counterclaim either against an original plaintiff solely or against original plaintiff and other persons, regardless of whether the latter are already parties to the action, but, in either event, relief must be claimed against original plaintiff, or matters set up must affect original plaintiff's rights." See also Turner et al. v. Utley, 93 Fla. 910, 112 So. 837; Lovett v. Lovett,93 Fla. 611, 112 So. 768.
Supporting our holding, we quote Mr. Kooman in his work, Florida Chancery Pleading Practice, referring to Sec. 35 of 1931 Chancery Practice Act.
So the decree should be affirmed insofar as it pertains to the foreclosure of the mortgage but should be reversed insofar as it attempts to adjudicate the issues raised by the counterclaim and the cause should be remanded with directions to the court below to modify the final decree by striking therefrom adjudication of the issues raised by the counterclaim and to dismiss the counterclaim, without prejudice, however, to the counter-claimants to proceed as they may be advised in independent suit or action on the alleged counterclaim.
CHAPMAN, C. J., and TERRELL, J., concur.