favor of the defendant becomes necessary in order to establish his defense, when, without it, its allowance would violate some principle of law. § 349. Continued-Illustrations. One is sued upon a written agreement, and, according to its terms, the liability is clear. But the defendant insists that there was a mutual mistake in reducing the contract to writing, and that, as it was actually made, there is no liability. According to the well-settled principles of law, the writing is the best evidence of the agree ment, and, in a proceeding to enforce it, no parol evidence will be permitted to vary its terms, to show that the agreement was different from that which is embraced in the writing. This rule of law is as obligatory in equitable as in legal proceedings. But the equity courts early assumed the right, never possessed by the courts of law, to reform written instruments when, by mistake, accident, or fraud, they failed to express the intentions of the parties; not that they could collaterally treat a writing as erroneous, enforce it, or otherwise, not as written, but as it should have been written, but by a direct proceeding and by an affirmative decree they would reform— that is, would make the instrument read as the parties, when it was drawn, intended it should read. . Under the Code, instead of being compelled to resort to an original equitable proceeding, the defendant, when sued upon the agreement, may seek the reformation by means of an equitable counter-claim. There can be no reform in the supposed case until the counter-claim is established, and a judgment accordingly. By a direct proceeding in the nature of a cross-bill, the defendant obtains an order reforming the instrument; until it is reformed, it is the only evidence of the contract; after it is reformed, it shows that the plaintiff has no cause of action; hence, it is reasonable to say that in such case there can be no defense until the instrument is reformed-until the defendant has obtained an affirmative judgment upon his counter-claim. And so in ejectment. The legal title is generally treated as evidence of its holder's right to possession, and in an action by him the defendant may interpose an equity. If it be such an equity as negatives the plaintiff's right of possession-as, of itself showing that the defendant is rightfully in, or that the plaintiff has no right to enter then it is a defense merely, and no affirmative relief need be sought. But in case the defendant holds under a contract which does not of itself give him the right of possession, but gives him the right to demand a conveyance from the plaintiff, then his right to continue in possession-his defense-depends upon his ability to establish his right to the conveyance. That must be sought by a counterclaim, as formerly by a bill for specific performance, and the defense is dependent upon his success in prosecuting such counter-claim. In this, as in the preceding case, there is, properly so called, no defense; and at common law none can be interposed. The defendant must go into another court, must enjoin the legal proceedings until his bill shall be disposed of, and the plaintiff is defeated, if at all, not by a defense, but by a decree in the affirmative action. So, in effect, under the Code. The judgment upon the counter-claim destroys the plaintiff's action, to which, otherwise, there is no defense. In the reported cases it does not always appear upon what principle a counter-claim, and relief under it, are sometimes held to be essential to the equitable defense and sometimes not; the question is raised, but the reasons governing the decision are meagerly given, or not at all. It would, however, seem that a counter-claim and a judgment giving affirmative relief should only be considered essential to the defense where such affirmative judgment operates to destroy the plaintiff's right of action, or furnishes of itself the grounds of defense, and when without it there could be no defense. § 350. Continued-The View taken by the Courts-Same I find the general judicial view in harmony with the one just stated, although there are cases inconsistent with it, and in no case do I find a clear statement of the principle. In Wisconsin an action was brought for the possession of chattels, showing a right of possession by virtue of a mortgage. The defendant alleged a mistake in the instrument, and that, as it was intended to be drawn, the debt was not yet due, but asked for no correction. The court said: "The method, is not to prove the mistake in an action at law, and have the same benefit as though the instrument had been reformed, but it is to bring an equitable action to reform the instru ment so that it can have its proper legal effect. Equity aids in such case by reforming the contract, not by giving effect to it without being reformed." 51 In the Supreme Court of Indiana, in an action for the conversion of crops, the answer having set up a mistake in a conveyance by the defendant in omitting a reservation of the crops, Frazer, J., says: "When a mistake in a deed or written instrument is relied on, the pleading should go further than in this case it did. It should have prayed affirmative relief; that the instrument be reformed so as to show the contract intended to have been embodied in it, and that, when so reformed, it might be allowed as a bar to the suit, or to so much thereof as it would bar. This might be done by an answer in the nature of a cross-bill in equity." 52 The Supreme Court of Ohio recognizes the same view.53 Two cases in the Supreme Court of New York, at general term, Talcott, J., delivering the opinion in both cases, carry the above view to its legitimate results. The actions were for the possession of land, and the defendant in each case relied upon mistakes in former conveyances made by persons who were not parties to the action. The defense was disallowed because the proper parties were not before the court. The decisions were based upon the ground that it was necessary for the defendant to make precisely such a case, both as to facts and parties, as though they had filed bills in equity for the reformation of the deeds. In Cramer v. Benton, it is intimated that it may not be absolutely necessary that a judgment reforming the instrument be procured, if the defendant. is content to waive it, inasmuch as a judgment that he recover will give him title,55 which is not always true. In another case in the 51 Follett v. Heath, 15 Wis. 601. The criticism upon this opinion is that it seems to contemplate the necessity of an original bill to reform the instrument as under the equity practice. 52 Conger v. Parker, 29 Ind. 380; and in King v. Enterprise Ins. Co., 45 Ind. 43, and other cases. 53 Globe Ins. Co. v. Boyle, 21 Ohio St. 119, although the irregularity was not treated as error. 54 Cramer v. Benton, 60 Barb. 216; Hicks v. Sheppard, 4 Lans. 335. Cramer v. Benton is affirmed in 56 N. Y. 638. 5 See, also, Maher v. Hibernia Ins. Co., 67 N. Y. 283. Supreme Court," it appears from the syllabus, the facts and opinion not being reported, that the court held that a defendant in ejectment who objects to the plaintiff's paper title, as founded upon a conveyance which by mistake embraced the land in controversy, might ask to have the deed reformed, or might make his defense without claiming equitable relief. The authority cited is Dobson v. Pearce, which only decides that an equitable defense may be made to a legal action. In the New York Court of Appeals I do not find that, in the class of cases now being considered, the specific question has been discussed, although Cramer v. Benton is affirmed without comment; 58 and there are other cases where the answer contained equitable defenses and counter-claims.5 57 § 351. The judicial View continued. In the cases hitherto considered, the equitable defense was based upon a mistake in some instrument of writing. Generally, a reformation of the mistake is sought, as the only basis of the defense, 56 Hoppough v. Struble, 2 Thomp. & C. 664. 57 12 N. Y. 156. 58 56 N. Y. 638. 59 In BARTLETT v. JUDD, 21 N. Y. 200, a sheriff's deed had by mistake embraced more land than had actually been sold. Fourteen years afterwards the purchaser brought ejectment for the land thus erroneously embraced, and the defendant set up the mistake and obtained a reformation of the deed. In Pitcher v. Hennessey, 48 N. Y. 415, the defendant's liability depended upon the construction of a contract. Before it was reduced to writing, the parties had agreed upon its terms, but the instrument contained a loose general phrase, supposed to embrace the agreement in an important particular, but which was held not to do so. The defendant was allowed to show what the agreement was understood to be, and to ask for a reformation of the paper. In Crary v. Goodman, 12 N. Y. 266, the defendant in ejectment had alleged, and offered to prove, that the land in dispute was intended to be embraced in a conveyance to his landlord, but its description was omitted by mistake. It was held to be a good equitable defense under the Code of 1848, upon the authority of Dobson v. Pearce; but no question was raised in regard to the pleading. In Andrews v. Gillespie, 47 N. Y. 487, the court, in an action to foreclose a mortgage, brought by the assignee of the mortgagee, sustained an answer setting up a mistake in the mortgage as regards the time of payment, and asking for a reformation of the instrument. In the although it has not always been held to be necessary. other class of cases the owner of the legal title to land brings ejectment against the holder of an equity, and the equitable right arises from a contract of purchase. I am speaking of ejectment under the Code, and not of the common-law action, where the legal title prevails. When the effect of such contract is to give the defendant a right to the possession, and when the time for payment and the conveyance has not arrived, the equity can only be interposed as a defense; there is nothing as yet upon which to base a counter-claim. Even if the defendant, by the expiration of the time named and by the performance of the conditions on his part, has become entitled to a conveyance, it would seem that he need not insist upon it, provided his right to possession continues under the contract. He might perhaps, be permitted to interpose his contract as a defense merely, or may, at his option, demand its specific performance; although the former is denied." But it may be that the contract does not give him a right to the possession, while he has a right to a conveyance; or, he may have forfeited such right and still may not have forfeited his equity; in either case his equity is but a right to a conveyance, and he can only protect himself by a counter-claim asking for a specific performance. In a case before the New York Commission of Appeals, the assignee of a vendor who held by contract had obtained the legal title and brought ejectment. The defendant set up a contract with the assignor, and asked for specific performance. Dwight, Comr., says: "At law, the defendant would, of course, have no defense. Under the Code he may set up his equitable defenses. The true view is that the defendant may set up, as an answer to the action of ejectment, the same equitable right to which he would have been entitled had he been a party to an action for specific performance. The result is, had S. (the assignor) brought the present action, the defendant would have had a right to set up the facts as entitling him to a judgment for specific performance, and such judgment should have been given in his favor;" the opinion going on to show that the defendant has the same right against the present plaintiff. co In Dewey v. Hoag, 15 Barb. 365. 61 Cavalli v. Allen, 57 N. Y. 508. In |