Relief.

§ 352. * 458. Illustrative Cases. Although the decisions do not attempt to furnish any general test by which one may determine the nature of a 66 cause of action," and whether a pleading contains one or more, they fully recognize the fact that the cause of action is not to be confounded with the relief, and that the demand for or the granting of many forms of remedy may be based upon a single cause of action. The following cases not only exhibit the proneness to confound the remedy with the cause of action, and the necessity of understanding the essential distinction between them, but they also illustrate, and fully sustain, the foregoing principles, which I have proposed as the test by which such distinction may be at once recognized: a complaint alleged that the plaintiff, being indebted to the defendant upon several promissory notes held by the latter, had assigned to it a bond and mortgage as collateral security; that the defendant had collected the amount due on the bond and mortgage, which was more than sufficient to pay all the notes in full; that a surplus was left remaining in its hands, and upon these facts demanded payment by the defendant of such balance, and surrender and cancellation of the notes so given by the plaintiff. To this complaint the defendant demurred, on the ground that causes of action had been improperly joined. The New York Court of Appeals held that there was no uniting at all of different causes of action, and that only a single one was stated, although two distinct reliefs. were demanded.1

Cause of Action not to be confounded with

v. Bemis, 57 Wis. 315 (trespass on land, aggravated by injury to personal property); Whatling v. Nash, 41 Hun, 579 (same); Gilbert v. Pritchard, 41 Hun, 46 (trespass on land, aggravated by assault); Butler v. Kirby, 53 Wis. 188; Loveland v. Garner, 71 Cal. 541; Thames v. Jones, 97 N. C. 121; Welch v. Platt, 32 Hun, 194; Lehnen . Purvis, 55 Hun, 535; United States L. Ins. Co. v. Jordan, 21 Abb. N. Cas. 330; Whitner v. Perhacs, 25 Abb. N. Cas. 130; Newcombe v. Chicago & N. W. Ry. Co. (N. Y. Supreme, Jan. 1890), 8 N. Y. Suppl. 366; Leary v. Melcher (N. Y. Supreme, May, 1891), 14 N. Y. Suppl. 689; Wickersham v. Crittenden, 93 Cal. 17; Whetstone v. Beloit Straw Board Co. (Wis. 1890), 45 N. W. 535 (damages for personal injuries, and can

cellation of a release of the defendant for liability for the injuries); also Damon v. Damon, 28 Wis. 510; Moon v. McKnight, 54 Wis. 551. Several of these cases appear to consider the invasion of distinct rights of the plaintiff by one tortious act, or series of connected tortious acts, as constituting but one cause of action; thus making the latter consist in the delict alone. Compare post, p. 476, note 5. For an instance of two causes of action improperly mingled, see American ButtonHole, etc. Sew. Mach. Co. v. Thornton, 28 Minn. 418.

1 Cahoon v. Bank of Utica, 7 N. Y. 486. The defendant insisted that a cause of action for the recovery of money was united with one equitable in its nature. The court said, per Johnson J. (p. 488):

§ 353. 459. Same Subject. Actions brought to reform instruments in writing, such as policies of insurance and other contracts, mortgages, deeds of conveyance, and the like, and to enforce the same as reformed by judgments for the recovery of the money due on the contracts, or for the foreclosure of the mortgages, or for the recovery of possession of the land conveyed by the deeds, fall within the same general principle. One cause of action only is stated in such cases, however various may be the reliefs demanded and granted. The principle also applies to

"The ground on which this case ought to be put is, that the complaint does not contain two causes of action. The claim is single... The plaintiff now seeks an account of the proceeds of the mortgage and of their disposition, and to have the balance paid over, and the notes which are satisfied delivered up. It is no answer to say that the balance of moneys could have been recovered in an action for money had and received. It would none the less have been the proper foundation for a bill in equity. . . . It is only because there is no dispute about the amount due that there seems to be any room for mistake as to the character of the claim. If that remained to be ascertained, it would be the clearest possible case for an account; and yet this case is not clearer than the one before us. . . . It is, in short, a complaint by a debtor to have his obligation delivered up and cancelled, and an account of the securities pledged, and payment of the surplus. That a claim so simple in its character, so well recognized, and even familiar, under the old practice in chancery, should be seriously regarded as two distinct causes of action, requiring distinct modes of trial, and incapable of being joined in a single suit, is quite as surprising as the doctrine itself, if held to be well founded, would be inconvenient. See also Connor v. St. Anthony Bd. of Ed., 10 Minn. 439, 444; Sortore v. Scott, 6 Lans. 271, 275, 276; Reedy v. Smith, 42 Cal. 245, 250.

1 Bidwell v. Astor Mut. Ins. Co., 16 N. Y. 263; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357; Guernsey v. Am. Ins. Co., 17 Minn. 104, 108 (actions to reform a policy of insurance, and to recover the amount due on it as reformed); Gooding v. McAllister, 9 How. Pr. 123 (action to re

form a written contract, and to recover a money judgment upon it for the sum due when corrected); McCown v. Sims, 69 N. C. 159; Rigsbee v. Trees, 21 Ind. 227 (actions to reform a promissory note, and to recover the amount thus shown to be due. The decision in the latter case is referred, however, to the special provision of the Indiana code, § 72); Hunter v. McCoy, 14 Ind. 528; McClurg v. Phillips, 49 Mo. 315, 316 (actions to reforin a mortgage, to foreclose as thus corrected, or to reform a deed and quiet the title thereunder). Walkup v. Zehring, 13 Iowa, 306 (action to correct mistakes in a series of title-deeds, to set aside another deed of the same land, and to quiet the plaintiff's title and possession). See, however, per contra, Harrison v. Juneau Bauk, 17 Wis. 340, which was a suit to reform a contract, and to recover the money due upon it when corrected. Dixon C. J. said (p. 350): "The complaint contains two distinct causes of action,

-

the one equitable, the other legal, - which in strictness should have been separately stated. That for the reformation was equitable, and was for the court; the other, for the recovery of money, was legal, and was for the jury." The learned court has here fallen into the evident error of confounding the cause of action with the relief; and its decision is in direct conflict with the doctrine established by the numerous authorities quoted above and below, which involve similar facts and the same principle. The doctrine of this case has become established in Wisconsin; a union of equitable and legal causes of action is hardly permitted in that State.

[Christensen v. Hollingsworth (1898), 6 Idaho, 87, 53 Pac. 211; Vermont Loan & Trust Co. v. McGregor (1897), 5 Idaho,

actions brought against a fraudulent grantor or assignor and his grantees or assignees to set aside the transfers, although made at different times and to different persons, and to subject the property to the plaintiff's liens, as in creditors' suits; or to compel a reconveyance and restoration of possession of the property, as in the case of suits by defrauded heirs or cestuis que trustent, and the like. There is but one cause of action against the various defendants in these and similar suits. In like manner, the principle applies to actions brought by persons holding the equitable title to lands against those in whom the legal title is vested, for the purpose of setting aside the deeds under which the latter claim, on the ground of fraud or other illegality, and of recovering or confirming possession and quieting title. The different reliefs which the plaintiff seeks to obtain do not constitute different causes of action. It also applies to actions for the fore

320, 51 Pac. 102; Jenkins v. Taylor (1900), Ky., 59 S. W. 853; Steinbach v. Prudential Ins. Co. (1902), 172 N. Y. 471, 65 N. E. 281 (action to reform policy and judgment thereon as reformed). Imperial Shale Brick Co. v. Jewett (1901), 169 N. Y. 143, 62 N. E. 167 (also an action to reform policy and recover thereon as reformed). Hahl v. Sugo (1901), 169 N. Y. 109, 62 N. E. 135, see note (1) to p. 27, ante, for the facts of this case. Robinson v. Brown (1901), 166 N. Y. 59, 159 N. E. 775; Keys McDermott (1903), Wis.

2.

N. W. 553.]

93

1 Bassett v. Warner, 23 Wis. 673, 685; Blake v. Van Tilborg, 21 Wis. 672; Bowers v. Keesecher, 9 Iowa, 422; Howse v. Moody, 14 Fla. 59, 63, 64. These were actions by heirs, or other persons in the position of beneficiaries, against administrators, or other individuals holding a fiduciary relation to them, and their grantees or assignees, to set aside fraudulent transfers, to compel an accounting and a restoration, and other like reliefs. The doctrine of the text was freely applied in them all; Winslow v. Dousman, 18 Wis. 456; Gates v. Boomer, 17 Wis. 455; North v. Bradway, 9 Minn. 183; Chautauqua Cy. Bk. v. White, 6 N. Y. 236. These actions were all ordinary creditors' suits.

2 Phillips v. Gorham, 17 N. Y. 270; Laub v. Buckmiller, 17 N. Y. 620; Lattin v. McCarty, 41 N. Y. 107. See, further,

Johnson v. Golder, 132 N. Y. 116 (complaint alleging that the plaintiff is the owner of land subject to a mortgage which was fraudulently foreclosed, and praying for redemption, accounting, and that a pretended mortgage given by the purchaser at a foreclosure sale be cancelled, states but one cause of action); Louvall ". Gridley, 70 Cal. 507 (prayer that a deed be declared a mortgage, and the title to the land involved be quieted).

[Beronio v. Ventura Lumber Co. (1900), 129 Cal. 232, 61 Pac. 958, was an action to have a sheriff's deed adjudged void and to quiet title to certain premises therein described. Defendant demurred upon the ground that two causes of action had been improperly united in the complaint, "viz., an action to quiet the plaintiff's title, and an action to have the sheriff's deed declared void." The court below sustained the demurrer. The Supreme Court in reversing the case said: "The complaint presents only a single cause of action, viz., the enforcement of the plaintiff's right to the premises in question against the unlawful claim of the defendant thereto. portion of the remedy for the enforcement of that right it seeks the annulment of the sheriff's deed, but a plaintiff may frequently be entitled to several species of remedy for the enforcement of a single right (Pomeroy's Code Remedies, sec. *459);" San Pedro Lumber Co. v. Rey

As a

closure of mortgages, where the plaintiff seeks to obtain not only a sale of the mortgaged premises, but also a judgment for a deficiency against the mortgagor and other persons who are personally liable for the debt. In several States the codes expressly authorize such actions.2 The weight of authority, however, in those States whose codes do not contain such express provisions, seems to be the other way; and the rule therein seems to be generally established, that, in an action of foreclosure, a judgment for a deficiency cannot be obtained against any persons liable for the debt other than the mortgagor himself; it is said that the

making such third person a party, and the praying a decree for deficiency against him, is a misjoinder of causes of action. A suit by the vendor of land to recover the purchase price, and to enforce his lien therefor upon the premises sold or conveyed, includes but one cause of action, the double relief plainly arising from the single state of facts.2

4

§ 354. * 460. Same Subject. The following are some additional instances in which the doctrine has been approved and enforced by the courts, and the cause of action held to be a single one. An action against a husband and wife, brought upon an alleged indebtedness of both, and an agreement of both to secure the same by a mortgage upon the wife's lands, although at the trial the debt was shown to be against the husband alone, and no such agreement as the one alleged was proven; 3 an action by the vendee in a land contract for a specific performance and for damages, where judgment was given for damages alone; an action by the heirs and administrator of a deceased cestui que trust against the trustee, who held both real and personal estate in trust, for an accounting, a conveyance of the land, and a transfer of the personal property; 5 an action to remove a nuisance, for damages, and for an injunction; for admeasurement of dower, possession, and recovery of rents and profits; by one tenant in common against the other, to compel a specific performance of the latter's agreement to convey his share, or for a partition; an action by a stockholder against a bank, its officers, and their assignee, to set aside an assignment, to remove the officers, for an accounting, and for a winding-up of the corporation, all based

1 Faesi v. Goetz, 15 Wis. 231; Cary v. Wheeler, 14 Wis. 281; Jesup v. City Bk. of Racine, 14 Wis. 331; Stilwell v. Kellogg, 14 Wis. 461; Borden v. Gilbert, 13 Wis. 670; Doan v. Holly, 26 Mo. 186, 25 Mo. 357. In Ladd r. James, 10 Ohio St. 437, it was said that when a mortgage is given to secure a note, and an action is brought setting out both, and demanding judgment for money on the note, and for a foreclosure and sale on the mortgage, any issue of fact affecting the former demand for relief must be tried by a jury if either party require it. See also McCarthy v. Garraghty, 10 Ohio St. 438.

2 Stephens v. Magor, 25 Wis. 533; Turner v. Pierce, 34 Wis. 658; Walker

v. Sedgwick, 8 Cal. 398. In the latter case, the action was on notes given for the price.

3 Marquat v. Marquat, 12 N. Y. 336.
4 Barlow v. Scott, 24 N. Y. 40; Stern-
berger v. McGovern, 56 N. Y. 12, 21. And
see Duvall v. Tinsley, 54 Mo. 93, 95.

5 Richtmyer v. Richtmyer, 50 Barb. 55.
6 Davis v. Lambertson, 56 Barb. 480.
7 Brown v. Brown, 4 Robt. 688.

8 Hall v. Hall, 38 How. Pr. 97. This decision is certainly opposed to the principle stated in the text, and to the weight of authority. Two different primary rights are clearly stated; one based upon the contract, and the other upon the ownership in

common.