By the Court,
Cole, J.This case comes fully within the doctrine of this court as laid down in the case of Walker vs. Wilson, 13 Wis., 522; and we therefore do not deem it necessary to go over the ground there discussed. It is sufficient to say that we there held that damages for a breach of the covenant of seisin constituted a proper counter-claim in an action to foreclose a mortgage for the purchase money. We could not see why such a cause of action did not possess all the elements of a counter-claim, as defined by chap. 125, R. S.
In the present case the appellant set up in his answer, and offered to prove, a breach of the covénant of seisin, and of the right to raise the water to the height mentioned in the *57deed. He claims tliat the respondent never possessed that • right, and of course could not convey it. And this breach. of the covenant of seisin constituted an existing cause of action when this suit was commenced. The circuit court rejected all the testimony offered relating to the overflowing of the water raised by the dam, and the extent of the respondent’s right to raise the water, and the prbof of all damages arising therefrom, holding that such damages did not constitute a counter-claim and were no defense to the action. This ruling we deem erroneous.
We were referred on the argument, among other authorities, to the case of Hill vs. Butler, 6 Ohio State Rep., 207, as having a strong bearing upon the questions here raised. We think, however, that case is distinguishable from this. There a party in the undisturbed possession of land, attempted to set up, in an action to foreclose a mortgage for the purchase money, damages for a partial failure of title. The court held that it could not be done, because, as he had not been evicted by paramount title, his damages were merely nominal. But here the right of action for the breach of the covenant of seisin was complete, and the damages arising therefrom might be important. We think the appellant was entitled to show what damages he had sustained in consequence of the breach of the covenant of seisin and of the right to convey, and that these damages would constitute a defense z>?’o tanto to the action for the foreclosure of the mortgage.
The judgment of the circuit court must therefore be reversed, and the cause remanded for further proceedings in conformity to this decision.