delivered the opinion of the Court:
The importance of this case, both with respect to the legal questions involved and the value of the property depending upon its determination, has induced us to give it our most careful and deliberate consideration, and also to set out more fully than is usual the proceedings in the court below, so that its real merits may be presented in as clear and compendious a light.as possible.
A reversal is asked upon a number of grounds:
First.—It is insisted that the court erred in striking the plea in abatement from the files. This objection is not well taken. Section 21 of chapter 1 of the Revised Statutes provides: “No plea in abatement shall be received in any suit for partition, nor shall such suit abate by the death of any. tenant.” This section is almost a literal copy of the 3d section of chapter 31 of 8 and 9 W. Ill, which was passed by the English Parliament to remedy some of the delays and inconveniences of the common law action of partition. The only difference between the two sections is, the 3d section of the English statute contains the words “admitted or” immediately before the word “received.” 2 SelloiVs Prac. 214. In construing this section of the English statute, it is uniformly held that no plea in abatement is admissible in partition proceedings, and in adopting it the legislature must be presumed to have intended to adopt it with the construction already given it by the English courts. 2 Sellon’s Prac. 217. Indeed, it is difficult to conceive how any other construction could have been placed upon it. The language of the section is clear and unequivocal. We are of opinion, therefore, the plea in question was properly stricken from the files.
Plaintiffs in error also complain of the action of the court in refusing to continue the cause and to set aside the default as to Farrar and Wheeler. Passing these questions, at least for the present, we proceed at once to the more important question: Was the circuit court warranted in sustaining the exceptions to the answer, defaulting the defendants, and rendering the final judgment in the cause in the manner it did?
Preliminary to passing upon this question, it is important to consider somewhat the character of the proceeding and the principles and rules of practice which should govern it. For, whether the decision of the court below in sustaining the exceptions to the answer was right or wrong, depends, in some respect, upon whether it is to be determined by principles which govern pleadings at law, or those which govern pleadings in equity.
In the first place, it is to be observed, there is no question or controversy here, as is sometimes the case, as to whether the proceeding is by bill, or by petition under the statute. It is clearly the latter, and as such, according to the previous decisions of this court, it must be regarded as a suit at law and not in chancery, and it therefore follows, that the proceedings, except when otherwise provided, should conform, as far as is practicable, to the procedure which obtains in courts of law, and this requirement is not at all affected by the fact that the present statute authorizes the court, in such cases, to adjust the equities of the parties to the same extent that a court of equity might under a like state of facts. The change in the statute, in this respect, does not at all affect the character of the court, as a court of law, when exercising this equitable jurisdiction. Its only effect is to confer additional jurisdiction in a specific class of cases, in which courts of equity had previously exercised exclusive jurisdiction There is nothing in the nature of many equitable rights that requires them to be administered exclusively in courts of equity. They might be administered just as well in a court of law, if the law so provided. This is practically demonstrated by the code system which prevails in many of the States of this Union. Formerly, the answer in partition at law was not required, in any case, to be under oath, but the statute is now so modified that the petitioner may, if he elect to do so, require the answer of the defendant to be verified by oath. In like manner there are certain pleas in proceedings at law which are required to be verified by the oath of the defendant. But such verification of the pleadings has never been supposed to affect the character of the proceeding, as a suit at law.
In Louvalle v. Menard, 1 Gilm 39, before this change in the statute occurred, this court, in speaking of the character of the proceeding, said : “ The mode of obtaining a division of real estate, given by this statute, was evidently intended to take the place of the common law remedy by the writ of partition. * * * In this proceeding the defendants are not, as in suits in equity, required to make discovery, or even to answer the petition under oath, aud the testimony is not necessarily taken by depositions, but may be introduced viva voce at the hearing. The proceedings are summary and in rem. The court is to act on the legal estate, and not on the equities of the parties. Its only duty is to ascertain their respective legal interests in the premises, and direct a division among them accordingly.”
In Greenup v. Sewell, 18 Ill. 54, where the same subject was under consideration, we said: • “ The proceeding, under the statute, for partition, is strictly a proceeding at law, like the common law writ of partition, in which mere equitable claims or titles can not be investigated and determined.” Without citing others, these authorities fully establish the proposition that the proceeding in question is an action at law> and a substitute for the old common law action of partition. So far as the procedure is defined by the act, of course that must be substantially pursued.
The first section defines who are entitled to partition, and gives all such the right to proceed by petition or bill, as they may elect, thus clearly recognizing the fact that they are, in contemplation of law, two distinct proceedings. The act then proceeds to provide where such suits shall be brought, how they shall be brought and defended by persons laboring under disabilities, and to define what the petition shall contain. It also expressly provides, that service, whether by notice, copy of petition, or by personal service of the summons, shall be in the same manner as in chancery cases.
It is further declared that the answer of the defendant, when required under oath, shall have the same effect as sworn answers in chancery. The specific provisions, with reference to service and the effect of a sworn answer, are the only ones that make any reference to the procedure in chancery cases. And we presume that it will hardly be contended that these provisions have the effect of changing the suit from a legal into an equitable proceeding.
Suppose our common law procedure was so modified by legislative enactment as to require the same mode of service in all actions of assumpsit, as is required in chancery causes, and it was further provided, that all special pleas in assumpsit setting up new matter by way of confession and avoidance, when required by the plaintiff, should be verified by affidavit, and when so verified, they should have the same effect as an answer in chancery,—no one would contend for a moment, that such legislation would have the effect of changing actions of assumpsit into suits in equity, or otherwise change the practice or procedure in such actions. So far as the mode of service is concerned, that is purely arbitrary, and does not at all affect the character of the action, and the provision giving the answer in a partition at law the same effect as a sworn answer in chancery, affects only the measure and mode of proof in the cause, and is simply equivalent to declaring that the answer, when thus sworn to, shall be taken as true, unless overcome by the testimony of two witnesses, or that which is equivalent to the testimony of two Avitnesses. Of course some actions at Iuav are more equitable than others, depending upon the mode of procedure and the equitable character of the rights administered, but these actions are still at law, and are governed by the rules and principles applicable to such actions.
The proceeding in this case, then, being clearly a suit at law, and, as such, pending in a court of law only,--on principle, the answer can not be regarded as anything more than the defendant’s plea, whose sufficiency should properly have been determined by a demurrer, and, in any view, the exceptions must be treated as a demurrer, and nothing more. Under certain circumstances important consequences flow from this distinction.
- In a chancery proceeding, if a party submits to answer, it is well settled he must answer fully. It is not sufficient for him to set up a state of facts which, if true, would defeat the complainant’s right of recovery.. He must, also, either admit or deny the charges in the complainant’s bill, otherwise his answer will be subject to exception.
This double office which an answer in chancery performs, results, mainly, from the frame of the bill. Originally, all bills were framed for purposes of discovery, as well, as relief. Hence, every bill not only stated the facts upon which the complainant relied, but also required the defendant to answer under oath, the charges in the bill, and to. this end the bill also contained specific interrogatories founded upon the matters therein stated, which the defendant Avas bound to answer. And such is often the practice of the present time, though not universally so, as in ancient times. 2 Daniell’s Chancery Practide, 813.
In a proceeding at law, however, the rule is altogether different. It is sufficient if the plea of the defendant shows that the plaintiff is not entitled to recover. This may be done in several ways. The defendant may deny all the facts in the declaration, or, where the defence consists of several facts, he may pass over one or more of them and single out some particular one and traverse that alone, or he may admit them all to be true, and set forth a new state of facts, which, in law, shows the plaintiff, notAvithstanding the facts alleged, has no right of recovery; and, in either case, the plea will be good. There is, also, this diversity in the two systems of pleading. Whatever is not admitted by the answer to be true, in a chancery proceeding, must be proved by the complainant, although it is not denied; whereas, in a pleading at law, everything which is not denied is, by implication, admitted to be true.
Keeping in view this diversity which prevails with respect to the principles which control the procedure in courts of law and courts of equity, we pass at once to the consideration of the sufficiency of the answer.
It admits that petitioners are the heirs of Catharine Medley, the purchase of the lot by Samuel White from the government, but charges that he sold one half off the south end of the lot to William White, and that Samuel White, at the time of his conveyance to Gunn, through whom petitioners claim, was not the owner of the undivided south half of the lot, and that the interest therein became vested in W. T. •Medley, through whom defendants claim. It also charges, that the lot, at the time of Catharine Medley’s death, was unimproved, except an old and nearly valueless frame house, and was not worth over five or six hundred dollars; that after her death, to-Avit: on the 16th of November, 1871, ¡Robert Medley, assuming to be the owner in fee of the lot, conveyed the same to W. T. Medley, who thereafter claimed to be the owner in fee; that while in possession and so claiming to be the exclusive owner in fee, W. T. Medley, through loans from Hopkins and others, erected thereon a large three-story brick building, Avhich is now of the Amine of from four to fiAm thousand dollars, and afterwards, for the consideration of $3500, conveyed the west half of the lot to Farrar and Wheeler, a large .portion of the consideration being applied in discharging the incumbrances Avhich had accrued in improving the lot, as above stated; and that, for the consideration of $4000, he also conveyed the east half to Hunley and Stanfield, Avho conveyed to Frazee, and that defendant Hopkins has succeeded to all Frazee’s interests and rights in the same.
Upon this state of facts it would be the grossest injustice <¡0 give the petitioners an equal interest in the enhanced value of the lot. If the facts alleged in the answer be true,—and, for the purpose of passing upon its sufficiency, we must assume them to be so,—not a dollar of their money was contributed to making the valuable improvements erected on the lot by W. T. Medley. Upon a partition between him and them, no one, we presume, would contend for a moment, that he would not be allowed the exclusive benefit of the improvements thus made by him; but it is equally clear, that his assignees, who, in good faith, purchased his interest in the lot, honestly believing, as is shown by the answer, that he was the exclusive owner, are, in equity, subrogated to all his rights. Louvalle v. Menard, supra.
Under the decree rendered, these valuable improvements, amounting to four or five thousand dollars, are taken from the defendants, who purchased them in good faith, presumably paying their full value, and absolutely given to the petitioners, who never paid for them a single cent. If the answer is to be regarded as simply the plea of the defendant, and its sufficiency is to be tested by the rules and principles which obtain in courts of law, it is substantially good,—for, admitting the facts therein alleged, it clearly shows the petitioners are not entitled to recover according to the case made by the petition.
Every plea in bar, in the generic or extended sense of the term, is deemed in law an answer, and doubtless the legislature used the term in the Partition act in this general sense, rather than with reference to any particular form of pleading. And that the act contemplates, or, at least, did contemplate, as originally framed, the ordinary course of pleadings and procedure as they obtain in courts of law, so far as applicable in carrying into effect the objects and purposes of the act, is manifest from the eighth section of the act which, as now modified, constitutes the fifteenth section. It provided as follows:
“The court shall ascertain, from the evidence, in case of default,or from the confession, by plea of the parties if they appear, or from the verdict by which any issue of fact shall be determined, and shall declare the rights, titles and interests of all the parties to such proceedings—petitioners as well as defendants—and give such judgment as may be required by the rights of the parties.”
We here see grouped together the three distinct ideas of a plea confessing the action, a trial by a jury, and the rendition of a judgment, rather than a decree, all of which are appropriate only to proceedings at law. In short, we are of opinion that the defendant, in a proceeding of this kind, may file such plea or pleas, other than pleas in abatement, as are usual in common law actions, and are appropriate to the defence which he may think proper to interpose, or to the relief which he himself may seek. And such seems to be the general doctrine on the subject. But for the statute, pleas in abatement might be interposed to actions of this kind just the same as to any others, and where no such statutory provision forbids, pleas in abatement are admitted the same as other pleas. :
Freeman, in his work on Co-tenancy and Partition, in treating of this subject (section 495), says: “In the States of California and ¡New York, and probably most of the other States, where statutory provisions have not directed to the contrary, the proceedings and pleadings on the part of the defendant in partition correspond with those in other actions.”
In section 498, the same author says: “ In the United States, it is generally understood that the defendant may plead any plea, including pleas in abatement, which affords him any defence to the plaintiff's petition, and which show either that the plaintiff ought to have no relief whatever, or that his relief ought to be different from that which he claims in his petition. The answer of the defendants may be confined wholly to showing that the plaintiff is not entitled to relief. If so, it must, of course, take issue with one or more of those allegations which we have shown to be essential to every complaint in partition. It must either deny that the plaintiff is in possession, or that the parties are co-tenants, or that the property to be divided is subject to compulsory partition. If no issue be taken on some of the indispensable allegations of the complaint, then some other matter must be affirmatively stated, as, that the plaintiff has no legal capacity to sue, or that there is another action pending between the same parties for the partition of the same property. * * * Other and further pleadings may also be had between the parties respectively, according to the practice of the court, as in personal actions, until an issue or issues in law or in fact be joined between the parties or some of them.”
The foregoing clearly shows that the answer of the defendant, whether in the form of a plea or pleas, technically so called, or otherwise, where the petition is pending in a court of law, is to be judged of and tested by the principles applicable to other pleadings in courts of law, and, as before stated, when the answer in the case before us is thus tested, it is substantially good. Even admitting the allegation excepted to for insufficiency was wanting in certainty, as claimed, still the answer, outside of that, shows clearly and beyond all question that Samuel White did not own the south half of the lot at the time of his conveyance to Gunn, and it follows, as a necessary consequence, that the petitioners have not the interest in the lot specified in their petition, and were not, therefore, entitled to recover at all without amending it. But, leaving this out of the question also, and assuming that defendants have only the -Jg- of the lot, still the answer clearly shows that the defendants are entitled to the value of the improvements made by W. T. Medley.
So far as the third exception is concerned, treating it as a demurrer, it should not have been sustained. Taking the petitioners’ own view of the matter, the statement in the answer, to the effect that other parties were in possession of the premises, as tenants for years, who had not been made parties, can only be regarded as surplusage, which can not be reached by demurrer.
Upon the whole, as the case is now presented, we are satisfied that substantial justice has not been done in the disposition of it in the court below, and, for this and other reasons already given, avc are of opinion the judgment of that court should be reversed, and the cause remanded so as to afford the parties an opportunity of having a trial of the cause units merits.
Without stopping to discuss the error assigned upon the refusal of the court to set aside the default entered against Farrar and Wheeler and grant a continuance, we are of opin- - ion, under the circumstances of this case, the ends of justice will be subserved by setting the default aside and permitting them to answer the petition as they may be advised, and it is accordingly so ordered.
The judgment is reversed, and the cause remanded for. further proceedings in conformity with this opinion.
Judgment reversed.