Miller v. Fulton
Synopsis
Equitable Defense in Ejectment.—An equitable defense interposed in ejectment should contain in substance all the elements of a bill in equity.
Idem.—In ejectment, an equitable defense that the defendant gave the plaintiff a deed of the demanded premises, absolute in form, but that the deed was intended as a mortgage to secure a debt, should be set up in the form of a cross-complaint, or separate defense, and- should contain an offer to redeem, and ask for affirmative relief by having the legal title restored'to the defendant.
By the Court: It is well settled that an equitable defense interposed in an action of ejectment should contain in substance the elements of a bill in equity, and that its sufficiency, other than as to mere form, is to be determined by the application of the rules of pleading observed in courts of equity, when relief is sought there. (Bruck v. Tucker, 42 Cal. 352, and cases there cited.) Tested by this rule the equitable defense attempted here amounts to nothing.
Judgment and order denying new trial affirmed—remittitur forthwith.
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