*448ON PETITION EOR REHEARING.
Worden, J.We are satisfied with the conclusion arrived at by the late court, that the judgment helow should be affirmed, and, therefore, that the petition for rehearing should be overruled; but we are not quite satisfied that the same strictness should be applied to sales made for improvement of streets, &c., under the authority of municipal corporations, that is required in sales for taxes, as is intimated in the original opinion in this cause.
We think the sale made under the circumstances shown in the record, and stated in the original opinion, was a nullity; but we think that conclusion may be well maintained without resorting to the extreme strictness usually applied to tax sales.
A rehearing, however, is pressed more especially upon the ground that the court is supposed to have overlooked, or not fully considered, a- question arising upon the. introduction of evidence.. The defendant below, on the trial, offered evidence tending to show that a prior action was pending between the same parties (they being reversed), involving the same cause. The evidence was excluded. There wms no plea in abatement under which the evidence could have been given, and the question presented is, whether it could have been given under the general denial. The statute applicable to actions for the recovery of real estate and for quieting the title thereto provides, that “the answer of the defendant shall contain a denial of each material statement or allegation in the complaint; under which denial the defendant shall be permitted to give in evidence every defense to the action that he may have, either legal or equitable.” 2 G. & H. 283.
If the words “ every defence to the action, * * either legal or equitable” are to be construed as embracing matters of abatement, as well as matters in bar, then, of course, the court below erred in excluding the evidence. But we think the language employed does not embrace matters of *449abatement. The following extract from Mr. Chitty will show the general signification of the word “defense” as applied to legal pleading: “After the statement of the appearance follows that of the defense, which has been defined to be the denial of the truth or validity of the complaint, and does not merely signify a-justification. It is a general assertion that the plaintiff'lias no ground of action, and which assertion is afterwards extended and maintained in the body of the plea.” 1 Chitty Plead. 428. We think the word “defense” as used, in the above-statute includes every matter in bar of the action, whether of denial or of confession and avoidance, but: not matter of abatement. The pendency of a prior action-- hetween the same parties for the same cause is no “defense” to-a subsequent action, but it is merely a reason why the defendant in the subsequent action should not be compelled to make his “ defense” therein.
J. Buchman, for appellant. J. McCabe and M. M. Milford, for appellee.This construction is not only, right in, itself, but it;is-necessary to preserve harmony in-the practice in- reference-to pleading matters of abatement. It has been held that sec. 200, p. 706, R. S. 1843, requiring pleas in abatement to-be sworn to without exception, is continued in force. The Indianapolis, &c., R. W. Co. v. Summers, 28 Ind. 521. No-good reason occurs to us why matters in-abatement of actions-of this character should not be pleaded, and sworn to, as-well as in other actions. We suppose the legislature-intended, by the provision, above quoted, to assimilate this-, class of actions to the old action of ejectment, in which the general issue was pleaded,, and under which; all legal; matters in bar could be given in evidence,, but. not matters-of' abatement; enlarging the common, law right of defense, however, by permitting equitable as well- as legal! defenses., to be thus given in evidence under-the-generabdeniah
The petition for rehearing-is-overruled;