The complaint claims the possession of a dower interest, or one-third of the estate for life, in the lands in question, and the answer of the defendant Gora D. Felton sets up that she is the owner in fee of one-half of the premises, in reversion, and that the plaintiff failed to pay certain taxes upon the lands, and that she was compelled to pay, and did pay, such taxes, and that she made certain improvements, etc.; and she prays for judgment against the defendant for the same.
*471It is quite immaterial whether that part of the answer demurred to, and which, in form, sets up the payment of these taxes as a counterclaim, or substantive cause of action, is a valid counterclaim in this action, or a good cause of action as for waste, against the plaintiff, which is allowed to be set up against the plaintiff on account of her being a -nonresident of the state, under sec. 1, ch. 4, Laws of 1868, or whether said statute is constitutional. The only material question under the demurrer is, whether, admitting the facts set up in that part of the answer to be true, they may be proved for any purpose in defense to the action, or to any part of the relief demanded in the complaint. "We think that, according to the statements of the answer as to her privity of estate in and relations to the land in question, the taxes paid by her are a proper subject of set-off against the damages claimed by the plaintiff for withholding the premises from her, and for rents and profits; and it is immaterial whether such matter is, in form, pleaded as counterclaim, or as a set-off, or what the special prayer of the answer' may be. Lawrence Adm'r, etc., v. Vilas, 20 Wis., 382. And therefore the demurrer should have been overrruled.
By the Court. — The order of the circuit court sustaining the demurrer is reversed, with costs.
Taylor, J., took no part.