1. Did the circuit court err in denying plaintiff’s motion for judgment, for the alleged frivolousness of the *551original answer? If the answer was frivolous — that is, if it contained no denial of any material allegation of the complaint — the motion should have been granted, or, at least, the defendant should have been required to make a better answer. Moreover, if it is frivolous, the amended answer does not deny, and therefore admits, that the plaintiff had title in fee to the lands described in the complaint, down to the time when the tax deed was issued to Putnam, as therein alleged. If that tax deed was successfully impeached, the title would still remain in the plaintiff, and he would be entitled to recover in this action for the logs admitted to have been .taken from such land by the defendant. The point made against the original answer is that it contains no direct denial, but only an averment that the defendant says it denies, etc. This form of denial was held insufficient by some of the courts of New York during the early years of the Code. But the rulings there are not uniform. In Chapman v. Chapman, 34 How. Pr., 281, the point -was ruled the other way. This is the latest ruling on the question, in that state, to which we have been referred.
This case, however, does not require us to choose between the conflicting decisions in Hew York. It is not, we think, a fair construction of the answer to hold that it merely states that the defendant “ says it denies,” etc. It commences with the introductory statement that the defendant comes, by its attorneys, “ and for answer to the complaint of the plaintiff alleges ” — then follows a direct denial in another distinct sentence, “Upon information and belief it denies,” etc. The signification of the pleading would not be changed did it read, “ The defendant alleges as follows, to wit: Upon information and belief it denies,” etc. We cannot doubt that this would be a sufficient denial.
The intention of the pleader to deny all of the material allegations of the complaint, except the incorporation of the defendant, is very manifest, and we think he has expressed *552that intention in the answer. The statute (R. S., sec. 2668) requires a liberal construction to be given to pleadings, with a view to substantial justice between the parties. Another statute (sec. 2829) commands us to disregard defects in pleadings which do not affect the substantial rights of the adverse partjh Under these statutes it must be held that the original answer contains a sufficient general denial' of all unadmitted material allegations of the complaint. It therefore puts in issue the title of the plaintiff to the lands and logs in controversy. '
2. Although the action is in the nature of trespass, it is brought to recover damages for a permanent injury to the freehold. Were no damages claimed other than for the mere invasion of plaintiff’s possession, the lands being wild and-vacant, it would be incumbent on him-to prove his title' thereto in order to show a constructive possession in himself. The cause of action being permanent injury to the land, to entitle the plaintiff to recover he must establish his title. The reason of this is, if the plaintiff is not the owner of the land, a recovery by him would be no bar to an action for such injury brought against the trespasser by the real owner. The cases which establish these propositions are Hungerford v. Redford, 29 Wis., 345; Austin v. Holt, 32 Wis., 478; and the case of Winchester v. Stevens Point, ante, p. 350. In the last case it was held that actions to recover damages fór á permanent injury tó the freehold rest upon the same basis, in respect to the necessity of making proof-of title, as-con--' demnation proceedings. In such proceedings it has always-been held that the claimant must prove title to the land taken* or' injured before he can have compensation' and' damages awarded to him by reason-of such taking and-injury. *
3. The-learned counsel for defendant-maintain-that'the-tax deed tq its licensor and grantor, Putnam, being regular on its face, put the constructive possession of the land in Putnam and his grantees, and hence the trespass cannot be *553maintained against them for acts done on lands in their possession. Counsel further maintain that the defendant, by the acts of cutting and removing the timber, took actual possession of the land. It is said that the plaintiff is driven tó bis action of ejectment to recover the lands* and if he prevails therein can have his damages for taking the timber therefrom assessed as mésne profits-or as for use and occupation. This position is negatived by the case of Austin v. Molt, supra. That was an action of trover for logs cut by one Sargent, on land claimed by the plaintiff. Sargent claimed the land under a tax deed regular on its face, but held invalid for a cause extrinsic to the deed. There, as in this case, it was insisted «that because Sargent had possession of the land, trover would not lie for the timber and logs taken from it. Dixon, C. J., who delivered the opinion of the court, thus discusses and determines the question: “ Adverse possession of land, such .as to prevent the true owner from maintaining trover or replevin for trees, timber, o'r other things severed and taken from it, should be clearly established. Such possession should be of such a kind and so long continued as to be clearly distinguishable from that which the claimant has while engaged in the mere act of committing the waste or severing and removing the property from the freehold. It should be something different from that which every trespasser has, and must have, in order to commit the trespass. If it be only the possession enjoyed by the trespasser, and taken and held by him for the very purpose, and that alone, of committing the trespass, it is not an adverse possession within the meaning of the ..rule under consideration. The possession of Sargent, was'of the latter kind, and was not sufficient to defeat this action. He built his shanties and took possession for the sole purpose of cutting and carrying off the timber, and his possession was incidental and subsidiary merely to that object. He quit the possession the' moment that object was *554accomplished. It matters not, therefore, that it took him some weeks or months- to accomplish the object; he was a mere trespasser, nevertheless, a.nd so remained from first to last.”
In Hungerford v. Redford, supra, the defendant also claimed the land from which he took the timber for which he was sued, under a tax deed regular on its face, but invalid in fact for irregularities in the proceedings preliminary to the deed. There the action was replevin, and it was not questioned that the real owner of the land might maintain the action. Under the circumstances of this case, we think the true owner of the land may maintain an action in the 'nature of trespass for the injuries to the freehold here complained of.
4. It was very earnestly argued by the learned counsel for the plaintiff that the state is the common source of the title claimed by both parties, and that the defendant cannot be heard to allege that the plaintiff’s title is void. The case of Hewitt v. Butterfield, 52 Wis., 384, is relied upon to sustain this position. That was an action of ejectment. The plaintiff claimed under a patent from the state, and the defendant claimed under a subsequent tax deed, which was held void. It was held that the patent to plaintiff was presumptive evidence of a sufficient title in the plaintiff to entitle him to recover against the defendant, who had no legal title to the land claimed. This judgment went upon the ground, as stated in the opinion by the chief justice, that “ it is not indispensable that the plaintiffs should establish a perfect indefeasible estate in fee simple in themselves, in order to recover against one who has no legal right either of property or possession.” We think the rule of that case has no application to the present case. ■ The reasons why none but the true owner of the land ought to be allowed to recover, in an action for unlawfully taking the timber therefrom, has already been suggested. The defendant ought not to be sub*555jected to pay for the tinfber taken more than once; yet that might happen if the rule contended for should be adopted. The substantial difference between an action of ejectment and an action of trespass, as well as between a patent from the state, by the issuing of which the state asserts its ownership of the lands conveyed, and a mere tax deed issued by a county clerk, are too obvious to require specification or discussion. We have considered this point, and indeed the whole case, on the assumption that the tax deed to Putnam, under which the defendant claims, was successfully impeached and is void.
5. It was conclusively proved on the trial that the lands in question were assessed for taxation in 1868 as a part of the town of Jenny by the officers of that town; that they ■were not then, and never had been, a part thereof; and that (so far as appears) the authorities of that town h^d never before assumed to exercise any jurisdiction over such lands. Such being the facts, it results that the tax deed under which alone the plaintiff makes his title is void, and the plaintiff’s claim of title fails.
The tax deed failing for that reason, the plaintiff cannot invoke the statute of limitations in its support. This was held in Smith v. Sherry, 54 Wis., 114. Nothing can profitably be added here to what is there said on the subject by Mr. Justice Cassoday.
It follows from the foregoing views that the plaintiff entirely failed to prove a cause of action, and was therefore properly nonsuited.
By the Court.— Judgment affirmed.