(dissenting). — We have heretofore determined that John Irwin was insane from a date prior to the sale of the land for taxes to the time of his death, and that the decree quieting the tax title in Griffin was irregular and voidable. The supplementary opinion concedes that Irwin’s representatives had the right to appear within one year after his death, and have the decree set aside, and make defense against Griffin’s claim, and that such appearance was in fact made in due time. Notwithstanding all these findings, and notwithstanding it declares for a reversal of the order of the district court denying a new trial, the opinion proceeds to announce that the reversal is merely an idle form, which “can do the appellants no good.” This anomalous result is sought to be justified upon the theory that the only right which Irwin or his *700heirs could obtain by a new trial is a right to defend •against the claim of Griffin, and that the right to have a redemption decreed in their favor is not a “defense,” but a cross-demand for affirmative relief, and, furthermore, as the right to redeem by an independent action in equity has since become barred by the statutory limitation, the tax title is now unassailable. If this be so, why do we reverse the order of the district court? If the tax title is impregnable, then the heirs have no shadow of defense to Griffin’s claim. Their only right to be heard is upon the theory that their equity of redempion has never been cut off, and when we reverse the order denying them that right we say, in effect, that the door of the court is now open for them to establish the alleged invalidity of the Griffin title, and redeem from the sale. We can find them entitled to a new trial only on the theory that they have made at least aprim.a facie showing of good defense; and when, in the same breath with this adjudication we declare that no defense exists, and that the privilege we offer these parties to be heard is barren of -all possible benefit to them, we involve ourselves, it seems to me, in a hopeless paradox. But, if we waive the apparent inconsistency of the result announced in the supplemental opinion, there still remain the following sufficient grounds of dissent therefrom:
I. The proposition that the right to defend against Griffin’s assertion of title does not include the right to demand and enforce a redemption from the tax lien is, in my judgment, untenable. Griffin’s action to quiet his title is brought in a court of equity. A “defense” in equity is not limited to the narrow sense in which that word is used in tendering an issue at law. It is not restricted to a mere denial, which puts plaintiff upon his proof, or to the pleading of new matter, which merely negatives his right of recovery. It includes as well the right to set forth by way of cross-bili or answer any fact *701or facts relevant to the case made by plaintiff upon which affirmative relief may be obtained by defendant, and the entire controversy between the parties be fully determined and settled. When, therefore, the heirs of Irwin demand and are granted the right to defend the action brought by the latter, they become entitled not only to deny the validity of the tax title he seeks to quiet, but to plead affirmatively the facts which establish their right to redeem, and have that right established and enforced in the same action. That a cross-bill alleging matters directly negativing the equity of the original bill and asking affirmative relief is a defensive pleading has been recognized by the courts for many years. A cross-bill “is considered a defense to the original action.” 1 Bouvier, Law Dictionary, 481. “A cross-bill is nothing more than an addition to the answer. It makes a part of the pleading which states the defense; the answer being the other part.” Canant v. Mappin, 20 Ga. 731. “A cross-bill, ex vi terminorum, implies a bill brought by defendant in a suit against the plaintiff respecting the matter in question in that bill, and it is a weapon of defense in such case.” Cooper’s Equity Pleading, 85. To same effect, see Story’s Equity Pleading (9th Ed.) 393, 399; Mitford and Tyler, Pleading and Practice, 179; Peterbaugh’s Pleading & Practice (3d Ed.) 363, 365; Adam’s Equity (7th Am. Ed.) 403; Beach, Modern Equity Practice, 332, 333; Barton’s Chancery Practice, 301; Galatian v. Erwin, Hopk. Ch. 66; Allen v. Fury, 53 N. J. Ch. 35 (30 Atl. Rep. 551); Thurston v. B. S. G. Co., (C. C.) 86 Fed. Rep. 484; Griffin v. Griffin, 112 Mich. 87 (70 N. W. Rep. 423); Nelson v. Dunn, 15 Ala. 513; Andrews v. Hobson’s Adm'r, 23 Ala. 239; Andrews v. Kibbee, 12 Mich. 96 (83 Am. Dec. 766); Kirkpatrick v. Corning, 39 N. J. Eq. 136; Giler v. Felhour, 45 Miss. 631; Draper v. Gordon, 4 Sandf. Ch. 210. In Slason v. Wright, 14 Vt. 208, Redfield, J., says the nature of a cross-bill is “strictly defensive to the original bill.” I find the con*702trary doctrine nowhere suggested or upheld. Indeed, as I read the cases, this court has long been committed to the same rule. In Treier v. Shafer, 18 Iowa, 29, Dillon, J., says: “Under the former equity practice, a cross-bill proper was a defensive proceeding as ‘an instrument of defense for the defendant in the original suit’ and proceeds to explain that under our Code practice the matter which was before pleadable'only by cross-bill may be alleged by way of answer, and affirmative relief granted thereon.
Unless we are to abandon this rule, and put ourselves out of harmony with all the precedents, we must hold that Irwin’s heirs, having appeared within the year prescribed by statute, thereby acquired the right to present and urge every defense they had, whether legal or equitable, to Griffin’s claim, and to receive such affirmative relief as the facts constituting their defense entitle them to in a court of equity.
II. Thus far I have dwelt upon the general rule applicable alike to all equitable actions, and now call attention to the peculiar force with which it applies to actions to quiet title. The very object and purpose of an action of this kind under our statute is to bring into court for final adjudication and settlement all the conflicting claims of the parties plaintiff and defendant to the title to the property in question. It is a necessary allegation imevery bill or petition for such relief that the defendant makes claim to the property adverse'to the plaintiff, and when once brought into court he is imperatively required to plead any and all his claims thereto, or forever after to hold his peace. The action does not permit him to defend by pointing out the defects in plaintiff’s title and withhold his own equities for litigation in some other proceeding. • He, as well as plaintiff, must disclose all his claims, and, the court having the entire case before it, will declare the title according to the very right, attaching such conditions concerning the discharge of liens and incumbrances,’ *703ii any, as shall appear to be just. It was, therefore, not only the right, but the duty, of the heirs of Irwin, if they would contest Griffin’s claim of title, to plead all the facts relied upon by them, and, while offering to do equity by making repayment of the taxes, demand that they be adjudged the holders of the true title to the land. This they did in their application for a new trial and in their showing of defense, and I have yet to find any authority in the statute or in the general principles governing pleading and practice in our courts which permits us to deny them the benefits of the defense thus proffered. As already noted, it is of the very essence of equity jurisdiction that the parties are not held to the narrow measure of allegation which prevails at law, and the court, having obtained jurisdiction of the parties and subject-matter, will take cognizance of all their conflicting claims of right concerning it, and, having weighed their equities one against the other, enter a decree which shall fully and finally settle the controversy, and put an end to litigation. Cockrell v. Warner, 14 Ark. 350; Catheart v. Robinson, 5 Pet. 279 (8 L. Ed. 120); Ord v. McKee, 5 Cal. 515; Wilson v. Lassen, 5 Cal. 114; Merwin’s Equity. Pleading, 537, 538; Aldrich, Equity Pleading, 106. To that end, the court will not wait the initiative of the parties, but, if it becomes apparent on the trial that there are outstanding claims held by either party, and not pleaded, which may be the subject of further controversy, will order the filing of cross-bill or other necessary pleading, in order that the beneficent purposes of equity may not be defeated. Field v. Schieffelin, 7 Johns. Ch. 150, (11 Am. Dec. 44.) Even without a cross-bill, in cases where the whole matter is before it, the court will see that a defendant is not deprived of any substantial right by a decree in-the existing suit. Hudnit v. Nash, 16 N. J. Eq. 555; Lloyd v. Kirkwood, 112 Ill. 338; Tate v. Vance, 27 Grat. 574; Taylor v. *704Beale, 4 Grat. 99; Wilson v. Madison, 55 Cal. 5; Miller v. Luco, 80 Cal. 257 (22 Pac. Rep. 195).
III. JBy our Code, a defendant may set up as many defenses, legal and equitable, as he may have to the plaintiff’s claim. Code 1897, section 3457. By the Code even a counterclaim is classed as a defense. See section 3457. The right to defend "is certainly broad enough to-admit the pleading of everything which is admissible in an answer, and we have held that a counterclaim is an answer, and, “in a sense, a defense.” Town v. Bringolf, 47 Iowa, 133; Yarger v. R. R., 78 Iowa, 652. If the claim affect the subject-matter of the original bill, the “test of an equitable defense is whether, upon the same facts presented by a bill in chancery, the court would have entertained the cause and grant the relief sought.” Gates v. Smith, 2 Minn. 30 (Gil. 21). Surely, under this rule, the pleading by the heirs of Irwin of the invalidity of the tax. title, and their demand to be allowed to redeem from the tax sale, constitutes an equitable defense, and as such their right to plead and rely upon it is guaranteed by the statute as well as by the established principles of pleading and practice in courts of equity. It was not necessary for them to plead by way of formal cross-bill, for under our statute all matters formerly pleaded only by cross-bill of defendant against plaintiff may now be alleged by way of answer, while the term “cross-bill” has come in ordinary use to signify a pleading filed by a defendant against a co-defendant. Treiver v. Shaffer, supra. The right to answer being once granted, it is not within the province of the court to say it shall not be exercised to the full liberal limit fixed by the statute.
IV. The rights of the'parties are to be considered and preserved as of the date of the service of the notice upon Griffin. It was, to be sure, the last day of the year of grace allowed by the statute-, but that fact in no manner detracts from the strength of their position. They *705had the right to proceed in equity to have the tax deed declared void, and to redeem from the sale. A suit in equity involving that title being already in court by the procurement of the adverse holder, they could appear therein, and, having obtained a vacation of the decree, set up their equities against his, and have the same fully and finally adjudicated. Possibly they could also have proceeded by independent action in equity for redemption under Code, section 1440 (Oode 1873, section 893), though I regard it open to doubt whether the default decree, if left unassailed by direct proceedings, would not have been held to be a bar to redemption by the latter method. They attempted, however, to get into court by both methods — by action in equity and by appearance to defend in the action brought by Griffin. In the former, according to a majority holding of this court, they failed to serve notice in time, and were barred by the limitation of the statute; but in the latter the service was timely. Thus they are in court, and are assuredly now clothed with every right to resist the tax title which they possessed at the moment the notice was served. If not, in what manner have they lost it? The notice put a stop to the running of the statute, and the erroneous ruling of the dis] trict court in refusing them the right to be heard was promptly appealed from to this court. Oan it be said that, because the right to begin an independent suit in equity has been barred since the heirs obtained a standing in the action brought by the tax-title holder, such bar becomes operative to .cut out the defense to Griffin’s claim? If not, then on what ground can we justify the conclusion reached in the supplemental opinion? The appeals in both proceedings are before us, and have been submitted and considered together. The facts are all in the record, and, as a court of equity, we should see that a result is reached which neither does injustice to the. *706parties- nor establishes an unsound precedent. There should be no decree quieting Griffin’s title in No. 2,800» but, if we adhere to the holding that the notice in that proceeding was not served in time, the case should be simply dismissed, without iirejudice to the rights of either party in the other action. The petition for rehearing in No. 2,300 should therefore be granted, and the decree of ■the district court reversed. The decree in No. 572 should .also be reversed. I adhere to my views expressed •on the first hearing as to the sufficiency of the service ■ of notice in each of the cases before us, but do not desire to extend this dissent by further consideration of that point.
McClain, J., concurs in the foregoing dissent.