Platto vs. Jante and another. port the said Carl and to pay him an annuity of two hundred dollars during his natural life. We are of the opinion that the complaint states a cause of action within the jurisdiction of a court of equity. By the Court. The order of the circuit court, sustaining the demurrer to the answer, is affirmed. PLATTO VS. JANTE and another. EJECTMENT: Complaint under sec. 3, ch. 141, R. S. In every action to recover real property brought under sec. 3, ch. 141, R. S., the complaint must contain the averments required by sec. 4 of that chapter, including the averment that defendant "unlawfully withholds the possession" of the premises claimed; although such premises may not be "actually occupied " at the commencement of the action. 27 Wis., 682; 29 id., 338. * * * unlaw APPEAL from the Circuit Court for Milwaukee County. The complaint avers that the plaintiff "hath an estate, and is the owner in fee simple, of, in and to, the following described real estate [describing it], and is entitled to the possession thereof, and that the defendants fully claim to be the owners in fee simple, thereof, and title thereto, to the damage of the plaintiff. Wherefore the plaintiff prays for the judgment of this court against the defendants that they do forthwith surrender said unlawful claim of ownership and title, and pay the costs of this action." Defendants demurred to the complaint as not stating facts sufficient to constitute a cause of action; the demurrer was sustained, and plaintiff appealed. J. V. V. Platto, appellant, in person : This action is brought under the last clause of sec. 3, ch. 141, R. S., and the allegations of the complaint follow the ex Platto vs. Jante and another. act language of the statute, and are therefore sufficient both in form and substance. Jarvis v. Hamilton, 16 Wis., 574; Howland v. Supervisors, 19 id., 247; Elliott v. Jackson, 3 id., 649; Platto v. Cady, 12 id., 461; Barclay v. Yeomans, 27 id., 682; Lee v. Simpson, 29 id., 334; Hill v. Kricke, 11 id., 442; Knox v. Cleveland, 13 id., 245; Jones v. Collins, 16 id., 595; Eaton v. Tallmadge, 24 id., 217; Banyer v. Empie, 5 Hill, 48; Barbour on Parties, 265–6-9. Johnson & Rietbrock, for respondents: Sec. 3, ch. 141, R. S., purports. merely to designate the persons against whom and the cases in which ejectment may be maintained. The rule of pleading in all of the cases mentioned in that section is prescribed by section 4 of the same chapter, and by that rule the complaint in this action is clearly insufficient. Barclay v. Yeomans, 27 Wis., 682; Lee v. Simpson, 29 id., 333. It is also insufficient as a bill quia timet. Wals v. Grosvenor, 31 Wis., 681. RYAN, C. J. The second clause of sec. 3 of ch. 141. R. S., authorizes the action of ejectment, in certain cases, against persons not in actual possession. Sec. 4 requires the complaint. in the action to aver that the defendant unlawfully withholds the possession of the premises. In this case, the appellant claims to have framed his com plaint under sec. 3, and contends that it is well framed because it follows the words of that section. The respondents reply that sec. 3 merely gives the right of action, but that the rule of pleading the right is given by sec. 4, which the complaint confessedly does not follow. This is not an open question in this court. Every complaint under sec. 3 must contain the averments prescribed by sec. 4. Barclay v. Yeomans, 27 Wis., 682; Lee v. Simpson, 29 id., 338; Wals v. Grosvenor, 31 id., 681. It is true that sec. 4 requires an averment not strictly true in fact, in such a case as this, brought under the second pro Du Pont vs. Davis. vision of sec. 3. But the former section is imperative. And the position of the appellant, not without much force in itself, is, in the language of the court in Barclay v. Yeomans, "an argument rather to be addressed to the legislature, against the wisdom of the provision as it now stands, than one for the consideration of the courts." It is not claimed that the complaint is under sec. 29 of the same chapter. It would be equally defective under that section. Wals v. Grosvenor, supra. By the Court. The order of the court below, sustaining a demurrer to the complaint, is affirmed. DU PONT VS. DAVIS. (1) RES ADJUDICATA. (2-5) EJECTMENT: EQUITABLE DEFENSE: PLEADING AND PRACTICE. (2) Equitable defense in ejectment should be pleaded as counterclaim. (3–5) Order of trials of legal and equitable issues. (6) Parties defendant. (7) Reversal of judgment. (8) ADVERSE POSSESSION: Statute construed. 1. A judgment of nonsuit in this cause having been reversed (30 Wis., 170), and the cause remanded for trial, and the present appeal being from a judgment after trial: Held, that the point decided on the former appcal is res adjudicata in this action; and the decision, even if erroneous, is binding upon the parties and the court herein. The court, however, regard the former decision as correct. 2. Equitable defenses may he set up in actions of ejectment; but they should be pleaded by way of counterclaim, and not merely by way of defense. Lombard v. Cowham, 34 Wis., 486. 8. In ejectment, where defendant alleges a mistake in a deed relied upon by plaintiff, and demands a reformation thereof, by way of counterclaim, the question of such mistake does not arise upon the trial of the issue at law, but only upon the trial of the equitable issue. 4. In such a case the more correct practice is, to try first the equitable issue, before the court, and afterwards to try the legal issue. Du Pont vs. Davis. 5. But the reverse order of trial in such a case, where it works no preju dice, is not error. 6. Whether the defenses in ejectment be legal or equitable, the persons whose interests are only collaterally affected by the judgment need not be made parties. The parties, if they choose, can put the responsibility of the litigation upon those under whom they claim, and so conclude them by the judgment. McConihe v. Hollister, 19 Wis., 269, distinguished and explained. 7. Where, in ejectment, defendant set up certain facts as an equitable defense, but was not permitted to plead them by way of counterclaim, and the court, on the trial of such equitable defense, found the facts adversely to the defendant; Held, (1.) That if this court were satisfied that the facts were correctly found, it might hold that defendant was not injured by the denial of a separate trial of the counterclaim, and refuse to reverse the judgment for such error. (2.) But the proofs in this case not being entirely satisfactory, and there being reason to believe that a new trial may bring out the truth more clearly, the judgment is reversed, and also the finding of the court below upon the mistrial of the equitable issue, the verdict being left undisturbed, and the cause is remanded for a trial of the counterclaim. Humphrey v. Sears, 2 Wis., 201; Laws of 1860, ch. 264, sec. 7. 8. In subd. 3, sec. 7, ch. 138, R. S. (which defines "adverse possession" of land in certain cases), the words "for the purpose of husbandry, or [for] the ordinary use of the occupant" are to be construed as relating back to, and limiting, the words "the supply of fuel or of fencing timber." APPEAL from the County Court of Milwaukee County. Ejectment. A former decision of this court in the same cause, on appeal from a judgment of nonsuit, is reported in 30 Wis., 170, 178. The original answer contained: 1. A general denial. 2. An allegation that defendant claimed title to the premises under one Clark, who entered into possession March 13, 1850, under claim of title exclusive of any other right, founding his claim upon a conveyance from one Sylvester Pettibone, dated on the day last named, and recorded two days. thereafter, as being a conveyance of said premises, and that there had ever since been a continued occupation and possession under such claim. After the cause was remanded for Du Pont vs. Davis. trial, defendant was denied leave to amend her answer by eliminating from the second defense her admission of title in Pettibone. She also asked leave to amend by adding a third defense by way of counterclaim. This averred mistake in the deed from Pettibone to Alfred Du Pont, under which plaintiff claims (and which is mentioned in the former report), whereby such deed was erroneously made to include the land in controversy; and it asked for a reformation of the deed. The court permitted the averments, so proposed, to be added to the answer as a defense merely, but not as a ground of counterclaim. When the cause was called for trial, defendant moved successively that the equitable issue therein be first tried by the court, and that all the facts in the case should be presented to the jury, and all the issues tried at the same time; but both motions were denied. A jury was then impaneled for the trial of the legal issues. Plaintiff introduced in evidence the following deeds, against objection: 1. A deed dated April 28th, 1848, and recorded June 30, 1848, executed by Sylvester Pettibone and wife to Alfred Du Pont, described in the former report of this case (30 Wis., 171.) 2. A deed of the same land, dated October 15, 1855, executed by Alfred Du Pont and wife to Henry Du Pont, the plaintiff, and Alexis J. Du Pont, "and the survivor of them." He also introduced some testimony to show the death of Alexis J. Du Pont, and occupation under the deed. Plaintiff having rested, the defendant moved for a nonsuit upon the same grounds on which the nonsuit before appealed from was granted, and also for the further reason that the proofs were insufficient. Motion denied. The defendant then introduced in evidence a deed dated March 13, 1850, and duly recorded March 15, 1850, executed by Sylvester Pettibone to Elisha B. Clark, conveying premises described therein as "part of the east half of the S. W. quarter of sec. 30, township 7, range 22 east," in the county of Milwaukee, "commencing at a point on the N. E. corner of said |