Wisner, by her next friend, agt. Teed and others, 9 How. Pr. 143

Welles, Justice. A preliminary objection is raised by the defendants’ counsel, that a demurrer does not lie to an answer unless the answer contains new matter constituting a counter claim, and that this answer does not contain such matter. The Code (§ 153) provides, that when the answer contains new matter constituting a counter claim, the plaintiff may, within twenty days, reply to such new matter, &c., or he may demur to the same for insufficiency, See.

This is the only provision of the Code allowing, in express terms, a demurrer to an answer, from which it is contended that the answer must amount to a counter claim, in order to authorize the plaintiff to test its' sufficiency by a demurrer. Looking at the

section by itself, and regarding its grammatical construction, this view, to say the least, is plausible. I incline, however, to think, in view of other sections, and the evils and inconveniences to which such a construction would lead, that it was not so intended.

Section 154 declares, that if the answer contains .a statement of new matter,constituting' a defence, and the plaintiff fail' to reply or demur thereto within the time prescribed by law, the defendant may move for-judgment; Here a demurrer by-the plaintiff is contemplated where the answer contains-a defence of new matter, and is not confined to an answer containing a-counter claim. I cannot believe that the legislature intended to deprive a plaintiff of the right to demur to an answer setting up new matter, unless the same constituted a counter claim".

Such answer could not be struck out on motion, under § 152, unless it was sham or irrelevant, nor under § 160, unless it was-irrelevant or redundant, nor under § 247, unless it was frivolous; and if it was neither, and did not in the. judgment of the plaintiff state facts sufficient to constitute a defence, which is not an .-uncommon occurrence, the consequence might -be, that the plaintiff, if he could not demur, would be subjected to the delay and expense of going to trial upon an issue of fact, which would determine nothing, and leave the parties just where they, were before the answer was put in.

Sections. 248, 249, 250, and 252, inform us what issues of fact and of law are, and how they arise. § 248 declares that an issue of law arises on a demurrer to the. complaint, answer or reply; and § 155 expressly" allows a der murrer-to a reply. -No reason can be conceived for allowing a demurrer, to a. reply -for -insufficiency, rind -not -to an answer for the same cause. Indeed, there is no way of -testing the sufficiency of either by the court, unless it be sham, irrelevant, redundant, or frivolous, except through a demurrer.

Suppose the parties go down to trial upon an answer which the defendant conceives to be insufficient. What,-1 ask, is there to try at the circuit % Clearly no question of fact, because the plaintiff does not wish to dispute, and does not- dispute-the- facts stated in the answer.' There is then nothing to try but an issue of. law, which § 248 declares arises on a demurrer to the "complaint, answer, or, reply, and which, by § 253, must be tried by the coiirt.

Yet, in such case, by force of % 168, the answer is to be deemed controverted by the adverse .party, and the action goes to: trial as an issue, of fact, when, in reality, there is no fact in dispute, and. the only controversy - between the parties is upon the sufficiency of the answer, and that question must in many cases, by § 253, be tried by a jury. I am aware that this question has been involved in some conflict of decision at special terms. In Salinger agt. Lusk, (7 How. Pr.

R. 430,) Justice Barculo held that a plaintiff might demur to an answer not containing a counter claim for insufficiency ; and in Simpson agt. Loft, (8 How. Pr. R. 234); and Roosa agt. The Saugerties and Woodstock Turnp. Co. (Id. 237.) Justice Harris held the contrary, and that a demurrer can be interposed to an answer, only when the answer contains new matter constituting a counter claim, and that a demurrer to an answer which does not contain a counter claim is a nullity.

It will be seen by reference to the last two cases, that the learned justice places his opinion upon § 168, and he remarks in one of them, that “ under the Code, as amended in 1852, there can be no demurrer to an answer unless it contain matter constituting a counter claim.” In this view I cannot coincide. There is nothing in the

section last referred to, which, in my judgment, compels us to such conclusion. It’s language is permissive, and not imperative in form of expression, and I think the intention was, simply to relieve the plaintiff from the necessity of replying, where he wished to controvert upon the trial the new matter stated in the answer. It is not declared that he may not demur to the answer.

In this way full scope may be given to the provisions of the section, without denying the plaintiff the right to bring the question of the sufficiency of the answer directly before the court by a demurrer, and thus avoid the confusion and inconvenience, not to say absurdity which I have attempted to point out as the consequence of the opposite view. This brings us to the consideration of the question presented by the demurrer in the present case, and upon that question I entertain no doubt. The answer, most clearly, does not contain facts sufficient to constitute a defence.

Upon the death of Pell Teed the testator, one-sixth part of the real estate in question vested under his will in his son, Pell Teed, jr., subject to the widow’s right of dower, which has never been admeasured or set apart. The plaintiff has become seized of the said one-sixth, as tenant in common with the other children, and entitled to ask for partition. It is not alleged, nor does it anywhere appear, that the monies received by Pell Teed, jr., from the testator, his father, were paid to him by the latter by way of advancement.

The fact of notes and obligations having been given for it, is evidence to the contrary. It is therefore an ordinary simple contract debt, due from Pell Teed, jr., to the estate of his father. Upon the vesting of the said one-sixth of the lands in question in Pell Teed, jr., the lien of the judgment through which the plaintiff claims, attached, eo instanti, and her title relates back to that lien, and nothing is shown by the answer to impair it. There must be judgment for the plaintiff on the demurrer^ with leave to the defendants to amend the answer demurred to, ¡on payment of costs.