ON PETITION EOB BEHEABING.
Peb Ctjbiam.In his petition for rehearing, counsel for plaintiff urged upon our attention three points :
1. That the order for an accounting was by the express direction of this court, independent of anything which appeared in the pleadings in the cause then considered, and being so, he was entitled to at least offset the money received by deceased against the taxes advanced on the land in question.
2. That we are mistaken in concluding that the matters set up by plaintiff in his counterclaim were not connected with the original trust.
3. That failing to attack the cross-complaint by an appropriate plea amounted to a waiver on the part of defendants to have the question of its materiality determined.
The first proposition is based on the opinion in the original cause (19 Colo, supra), which is as follows :
“ It is finally asserted by counsel for appellant that if the decree can be maintained upon other grounds, that it is erroneous in not decreeing an account of the amount of taxes paid by appellants and their ancestor. It is admitted that no such claim was made in the pleadings, nor in any way asked in the court below. This question, therefore, is not presented by the record, and cannot be considered on this review. We, however, agree with counsel that upon an affirmance of this decree, appellants are entitled to an accounting for the amount of taxes paid by them and their ancestor, and *298to be reimbursed for all sums so paid in excess of the money, if any, received by Iliff for plaintiff, and that the payment of the same should be made a condition precedent to the divestiture of the title. ”
In directing that the decree of the trial court should be affirmed, this court stated that such decree should “ not take effect as to the conveyance of the title until the amount found to be due appellants, if any, on account of the payment of taxes shall be first paid; ” and remanded the cause, with directions to the trial court to take such accounting. This direction did not contemplate that either party should introduce a new cause of action; on the contrary it merely held that a matter which was part of, and connected with, the original cause should be determined. This could only be done, so far as defendants were concerned, by an amendment which they filed for the purpose of presenting this question for adjudication. By so doing, they interposed a defense only, and not new matters, or a new cause of action. To this answer, as we have said, plaintiff could plead and prove facts which were simply defensive, but nothing more. The opinion in the original cause from which we have quoted does say that defendants shall be reimbursed for taxes paid in excess of the money, if any, reeeived by deceased for plaintiff. This language cannot properly be construed into meaning that a new cause of action could be interposed by plaintiff, and therefore could only refer to moneys which he had paid Iliff for that express purpose ; in other words — to moneys which he could prove Iliff had received under plea of payment on this account. No such plea was interposed.
We think we are correct in asserting that the items of the counterclaim of plaintiff are not connected with the original trust. In any event, he failed to make a claim on this account originally; and even if these items were connected with the trust in the lands, pleading them as a counterclaim was stating a cause of action upon which no claim such as is now sought to be asserted was founded under the original pleadings in the cause. In this connection we notice it is claimed *299that in the replication of plaintiff filed in the original cause, it was averred that deceased had received funds belonging to plaintiff, for which no account was ever rendered. From the averments of this pleading, it is manifest there was no thought or intention of setting up a claim against defendants on account of these funds, except for the purpose of avoiding the effect of their plea, that they and their ancestor liad paid the taxes upon the lands for a long period of time antedating the time the original action was commenced, by pleading inferentially that deceased must have applied these funds to liquidate such taxes, and had also applied them in procuring quitclaim deeds, reconveying to deceased the title acquired by virtue of a sale of such lands for taxes. Hence, it is clear that this plea was in no sense a counterclaim in the original action.
Relative to the third point made, counsel cite from Bliss’s Code Pleading ( 2d ed.), § 396, as follows:
“ As to the proper mode of correcting a departure, whether by demurrer or motion, courts are not in perfect harmony, but all agree that if the parties go to trial without, raising the question, judgment will not be arrested.”
This is undoubtedly a correct statement of the law on this subject, but objection was made to the introduction of evidence in support of the counterclaim. As a general rule, a question of departure should be raised by some. appropriate, plea, but where, as in this case, the questions to be determined were indicated in advance, the objection to the introduction of evidence saved the point, that the counterclaim was not only a departure from the original cause of action, but embraced matters outside of the inquiry to which the trial court was limited. The petition for rehearing is denied.
Petition denied.