Upon a motion for a rehearing, L. J. Billings, for appellant, submitted the following points:
1. The statement in the complaint of the amount due upon the mortgage is only the legal conclusion of the pleader from *242the facts stated. An answer denying a legal conclusion merely, is bad. Hathaway v. Baldwin, 17 Wis., 616; 2 Wait’s Pr., 418; McKyring v. Bull, 16 N. Y., 297; Lienan v. Lincoln, 2 Duer, 670; Edson v. Dillaye, 8 How. Pr., 278; McMurray v. Gifford, 5 id., 14. 2. The respondent’s answer does not admit that he is a subsequent incumbrancer, but only that he has an interest in the mortgaged property. If he claims as a prior incumbrancer, he is not within the rule stated in the opinion of the court; he does not answer the allegations against him, and plaintiff is not bound to litigate with him the question of paramount title. Pelton v. Farmin, 18 Wis., 222. 3. The answer purports to be a general denial of the whole complaint (except a specific fact admitted); and it cannot, therefore, be sustained as a specific denial of one allegation only, or a partial defense. Tay. Stats., 1439; Dennison v. Dennison, 9 How. Pr., 246; 1 Chitty’s Pl., 524; 1 Saund., 28, n. 3; Howk v. Pollard, 6 Blackf., 108; Hickley v. Grosjean, id., 351; Foster v. Hazen, 12 Barb., 547; Root v. Woodruff, 6 Hill, 418; Thumb v. Walrath, 6 How. Pr., 196; Willis v. Taggard, id., 433; Chapman v. Palmer, 12 id., 37; Cooper v. Emery, 1 Wend., 347; Babb v. Mackey, 10 Wis., 371; Filzsimmons v. City Fire Ins. Co., 18 id., 234.
LyON, J.The principal argument of the learned counsel for the appellant in support of his motion for a rehearing is based upon the proposition that an answer is bad which purports to be a defense to the whole cause of action stated in the complaint, but which, in fact, only goes to a part of the cause of action. Hence, it is claimed that- the answer of the general denial in this case, in the form in which such denial is made, not being a denial of the averments concerning the execution and recording of the plaintiff’s mortgage, is not a good answer to any other material averment in the complaint. One difficulty with the argument is, that the denial that any sum was due on the mortgage at the commencement of the *243action, goes to the whole cause of action, and not merely to a part of it, and hence is not within the rale of pleading upon which the counsel relies. The fault in the argument seems to be, that the proper distinction is not made beween a denial of part of a cause of action, and a denial of a portion only of the facts stated in the complaint, the averments denied being essential, however, to the plaintiff’s right to recover.
We do not care to enlarge on the subject, and will content ourselves with a statement of the rule applicable' to the case. We hold that the general denial puts in issue every material averment in the complaint which may-be denied in that manner, although there may be other material averments therein not specifically denied, and not reached.by the general denial. Sanford v. McCreedy, 28 Wis., 103, and Ewen v. The C. & H. W. R’y Co., vide post, 613, are illustrations of the application of this rule. It is not perceived that the cases of Babb v. Mackey, 10 Wis., 371, and Fitzsimmons v. City Fire Ins. Co., 18 id., 234, conflict with this rule. The question as to the effect of a general denial was not in those cases.
We are of the opinion that the answer admits that the defendant FisJc is a subsequent incumbrancer. It admits (or, what is equivalent thereto, it excepts from the general denial) the allegation that Fisk has or claims an interest in the mortgaged premises, and does not assert that such interest is prior to the plaintiff’s mortgage. We understand this to be an admission of the whole of the allegation, that is, an admission that such interest is subsequent to the mortgage.
Hathaway v. Baldwin, 17 Wis., 616, is not in conflict with the views expressed in the former opinion. In that case the court was asked to exercise its discretion, and permit the defendants (who were subsequent incumbrancers) to come in and answer after default. The answer tendered denied (among other things) any knowledge of information sufficient to form a belief as to the truth of the averment in the complaint of the amount due on the mortgage. This seems to have been the *244only averment therein which the proposed answer would put in issue. The opinion does not refer to the subject, but this court held, in effect, that the refusal of leave to interpose such answer was not an abuse of discretion. Doubtless, the case was correctly decided.
Counsel for the respondent have, without leave or explanation, forwarded to us a written argument on the motion, in violation of Rule 1 of this court, adopted July 2, 1875. ' That rule was made to facilitate the performance of the increasing labors of the court, already so great as to require all our time, and it must be obeyed ,
By the Court. — Motion denied.
Ryan, C. J., took no part in the decision of this cause.