The covenant of seizin was broken when the deed was delivered, and a cause of action arose thereon at that time. (Mygatt v. Coe, 124 N. Y. 212.)
The action was brought by the plaintiffs to recover the moneys agreed to be paid by the bond given for the purchase price; the mortgage was an incident to the bond and the indebtedness created thereby, and was given solely as collateral security for its payment. The object of the foreclosure action was to sell the mortgaged premises and apply the proceeds *334thereof in payment of the bond, and for “ such other or further relief, or both, in the premises as may be just and equitable.” An answer having been interposed to the complaint, the plaintiffs could properly recover a deficiency judgment, as it would be “ consistent with the case made by the complaint, and embraced within the issue.” (Code Civ. Proc. § 1207.) The answer shows that the plaintiffs’ liability for the breach of covenant was greater than the amount due upon the bond, and, if the facts had been proved, they would have defeated the recovery. The defendants’ cause of action arose out of the transaction set forth in the complaint, and was directly connected with the subject of the action, and in every respect falls within the definition of a counterclaim. (Code Civ. Proc. § 501.)
Some of the cases indicate that in an action to foreclose a mortgage against the mortgagee in possession, he cannot set up as a counterclaim or recoupment a breach of covenant in the deed for which the mortgage was given. They evidently proceed upon the theory that no action lies for such breach until there is an eviction, and overlook entirely the fact that in case of a breach of covenant of seizin the cause of action arises the moment the deed is made, if there is a defect in title. We have sustained a counterclaim as a recoupment under facts very similar to those in this case. (Peuser v. Marsh, 167 App. Div. 604.)
A defendant may allege as many defenses as he has, even though they are not consistent with each other. It cannot be that the allegation in the answer that a former action is pending for a breach of the covenant waives the defendants’ counterclaim and compels two actions where justice requires that the controversy be settled in one. I, therefore, dissent.
Order affirmed, with ten dollars costs and disbursements.