By the Court,
Willard, P. J.If the complaint be true, the plaintiff William S- Ingraham was tenant by the curtesy initiate of the premises, and his wife Sila was the owner of the fee. Assuming the facts to be so, the defendant’s counsel moved for judgment for the defendant, on the ground that the husband and not the wife was entitled to the possession, and that, therefore, there was a misjoinder of parties.
I. The defendant was not entitled to the judgment for which he moved. (1.) If there was a misjoinder of plaintiffs the defendant should have demurred. (Code, § 144, sub. 4.) The objection is deemed waived unless taken by demurrer or answer. (Id. § 148.) The defendant has relied on the objection in his answer, that upon the facts appearing in the complaint, there is an improper joinder of parties plaintiffs; that upon the facts stated, the action should have been brought in the name either of the husband or the wife, and not in the names of both. But in another part of the same answer, the defendant puts in issue the seisin of the wife, the marriage of the plaintiff, and the fact of their having issue. There is no rule of law which can uphold such a pleading. It is inconsistent with itself. One part of it is a demurrer, and the other part an answer denying the very facts conceded by the demurrer. It is well settled that a party *19can not demur and answer to the same pleading. (Spelman v. Welder, 5 How. Pr. Rep. 5. Slower v. Wheeler, 4 Id. 373. Cobb v. Frazer, Id 413.) If the complaint contains separate counts, the defendant may demur to one and answer to another. But this complaint has hut one count. The court could not both give judgment for the defendant on his issue of Iaiv, and try the issue of fact, raised upon the same pleading. (2.) The defendant asked for too much, when he moved for judgment for the defendant. Conceding that he had a right to insist on a misjoinder of plaintiffs in his answer, instead of demurring to the whole complaint for that cause, the only relief to which he was entitled upon his own premises, was to dismiss the complaint as to the wife, who he insists was not a proper party. (Code, § 274.) Having asked for too much, the judge was right in denying the motion. (3.) The action was well brought in the name of husband and wife. The husband was seised in right of his wife, of a life estate, as tenant by the curtesy initiate, and the wife, of the ultimate fee. These two estates constituted the whole quantity of interest, and to avoid multiplicity of actions, were well united in one action. (Code, §§ 111, 114,119.) The rule which prevailed in chancery, as to parties, should govern in this case. The action, though an ejectment in one sense, was like a bill for relief; and therefore a judgment could not be complete and coextensive with the whole interest, unless the husband and wife were united. (2 Madd. Ch. Pr. 143.)
II. It is urged for the first time, at the hearing, that the statute foreclosure was void because it does not appear that the mortgagor was twenty-five years of age when the mortgage was executed. The mortgage was dated in July, 1818. Ho objection was taken, either in the answer or on the trial, to the foreclosure, on the ground that the mortgagor was under twenty-five years old. Had it been taken then it could have been obviated, for it appeared that the mortgagor at the date of the mortgage was the father of the defendant’s wife. Besides, this was a personal privilege like that of infancy, which none can raise but the mortgagor himself.
III. There was no ground for the court to submit to the jury *20to presume that the mortgage was paid before foreclosure. Twenty years had not elapsed. Besides, the mortgage was foreclosed at the instance of the defendant himself.
IV. The main question in the case arose on the exclusion of the evidence offered by the defendant, to show that the mortgagor was non compos mentis at the time he executed the mortgage. The court excluded this evidence, upon the ground that the mortgage had been regularly foreclosed under the statute, and that Gilbert, the plaintiff’s grantor, was not a party to the mortgage, but a purchaser in good faith. The sale took place under the statute foreclosure, on the 11th Dec. 1839. The law then in force enacted that every sale pursuant to a power as aforesaid, and conducted „as therein prescribed, made to a purchaser in good faith, shall be equivalent to a foreclosure and sale, under the decree of a court of equity, so far only, as to be an entire bar to all claim or .equity of redemption of the mortgagor, his heirs and representatives, and all persons claiming under him or them, by virtue of any title subsequent to such mortgage. (2 I?. S. 546, $ o.)
The defendant was not in a condition to attack the mortgage under which Gilbert, the plaintiff’s grantor, purchased, for two reasons. (1.) He took a lease under Gilbert, and occupied under him as tenant, for six or seven years, paying rent, and then attorned to his grantee, and agreed to pay rent to the plaintiffs. He was therefore estopped to deny the plaintiff’s title. It is well settled that the defendant can not dispute the title of his landlord under which he entered. (2 Stark. Ev. 305. 1 Greenl. Ev. § 25. 1 Cowen & Hill’s Notes, 201, et seq. where the cases are collected.) (2.) The statute foreclosure was equivalent to a decree in equity. (2 R. S. 546, § 8.) It can not be impeached to the prejudice of a bona fide purchaser. (Jackson v. Henry, 10 John. 185, 195. Jackson v. Dominick, 14 Id. 435. Jackson v. Slater, 5 Wend. 295. Cameron v. Irwin, 5 Hill, 272. 4 Cowen, 266.) Gilbert was a purchaser in good faith. He was not an executor of the will of Russell Wells, the mortgagor, although named as such in the will. The issuing of letters testamentary to Leonard Wells, the other executor named, operated *21as a supersedeas to Gilbert. (2 R. S. 71, § 15. Laws of 1838, p. 103, ch. 149.) It was not pretended that Gilbert knew that the mortgagor was a lunatic. He paid the purchase money by a discharge of his debt against the estate of the mortgagee. This was equivalent to a payment of so much money. (21 Wend. 499. 24 Id. 115.) The mortgage was foreclosed, too, at the instance of the defendant, and he should therefore be estopped to impeach it. The court permitted evidence to be given, tending to show that Gilbert was not a purchaser in good faith. The alledged arrangement between the executor and Gilbert before the sale, to divide the property after the sale, shows no fraud in the sale itself. The agreement was a lawful one, and did not tend to prejudice any one. Ho competition wras prevented; and if Gilbert did not do by Wells as he agreed, the latter has his remedy. The testimony of Baker proves nothing, except that by Gilbert’s purchase, Baker was prevented from buying the property at an under value.
[St. Lawrence General Term September 1, 1851.A great variety of subordinate pointy were raised, but they were properly disposed of at th,e qjrcuit.
Judgment affirmed.
Willard, Hand and Cady, Justices,]