A motion for a rebearing was denied, and tbe following opinion filed, at tbe January term, 1872.
Dixon, C. J.Upon re-examining tbe first count of tbe complaint, it still seems not surprising that tbe nature of tbe cause of action stated in it, or intended to be, was tbe subject of solemn inquiry and careful study on tbe part of this court. If, as now appears from tbe argument of tbe learned counsel for the' plaintiff on motion for a rehearing, tbe intention clearly was to state a cause of action at law, or in ejectment, as tbe claim is, there are certainly many averments and facts alleged in .the count, which; to say tbe least, are well calculated to bewilder and mislead as to tbe true intention of tbe pleader. If tbe intention was, as is now avowed, to state a legal cause of action, wbiob, upon tbe facts alleged, could only be ejectment, clearly nothing could be more apt to puzzle and embarrass than tbe averments found in folios forty-six and forty-seven of tbe count, which are only suited to an action in equity for tbe foreclosure of a mortgage or other lien upon land, and which read as follows :
“And the said plaintiff further shows upon information and belief, that no proceedings have been bad at law to recover tbe money or other property secured by said mortgages or any part thereof; that tbe defendants Ransom Ragan and Sophia A. Ragan, Cyrus H. McCormick and Leander McCormick have or claim to have some right, title or interest in or to said ! premises or some part thereof, but which is subject and subordb *339nate to tbe rights and interests of tbe said, plaintiff therein; that tbe said deed of conveyance executed and delivered by said Sophia A. Bagan aforesaid, and tbe possession of said plaintiff under tbe same, operated as an assignment of all her right, title, interest, claim and demand in and to said premises, and to tbe said several sums paid by her for taxes thereon, and to tbe obligations secured by said mortgages, and by tbe said deed so executed and delivered to her as aforesaid, if the same he adjudged to he a mere mortgage and security, and not an ex-tinguishment of tbe equity of redemption of tbe said Simpsons in and to tbe said premises.”
Considering tbe purpose of tbe pleader to have been to declare in ejectment for tbe land upon tbe legal title, it must be admitted, we think, that tbe presence of averments like these and others not less inappropriate to that form of action, was well adapted to perplex and confuse. Tbe complaint in ejectment is a short pleading, tbe form and averments of which are regulated by statute, and which for tbe present case, in tbe statutory form, would scarcely have exceeded one folio; whilst this complaint or count exceeds forty-eight folios.
But, be these things as they may, or tbe doubts which existed in tbe mind of tbe court as to tbe object and intent of tbe pleading never so ill founded, we are still of opinion that tbe motion for a rehearing must be denied. Considering tbe design to have been to declare in ejectment, tbe count fails entirely to comply with tbe statutory requirements of tbe complaint in such action; and tbe learned counsel are quite mistaken when they say or assume that tbe former opinion held tbe pleading sufficient for that purpose, or that a good cause of action in ejectment was stated. A perusal of tbe opinion, even tbe most hasty, will show this mistake. Tbe labor there was to demonstrate that tbe count stated no cause of action in equity, and with that conclusion tbe court rested, and in that conclusion counsel acquiesce.
In arriving at such conclusion, and as part of tbe process of *340demonstration or argument, it became necessarj for the court to show, upon the facts as pleaded and admitted bj the demurrer, that the supposed cause of action was legal and not equitable, and that the remedy of the plaintiff was by action at law and not by suit in equity. Such was the scope and purpose of the reasoning, and nothing other or further. The object was to show that ejectment was the proper remedy, but not that this was such an action, or the first count a complaint in ejectment. It was held that the plaintiff had “ an adequate and unquestionable remedy at law by his action of ejectment, and to that action he must resortbut it was not held that this was such an action, nor was the ease considered or examined in any such light. We must confess that it did not occur to us at all that the pleading was a count in ejectment, or designed to be; and now, upon examining it, we find very clearly that it is not. It contains none of the essential averments prescribed by the statute for such a complaint. R. S., ch. 141, see. 4. It was but lately that this court had occasion to consider the provisions of this statute, and the nature of its requirements; and an examination of the opinion in that case will show how very far short the pleading here comes of stating a good cause of action in ejectment, when it is understood that it contains none of the specific allegations made necessary by the statute. Barclay v. Yeomans, 27 Wis., 682.
As the first count, therefore, states no cause of action at law, as well as none in equity, it follows that there is no reason for changing or disturbing the decision already made, and that the motion for a rehearing should be denied.
By the Gowrt. — Motion denied.