der the direction of the court? In states where the two jurisdictions of law and chancery are strictly separated, and relief is administered in different courts or by the same court sitting in different capacities, this question might be answered in the affirmative. But in the territories of the United States there is only one court to try all causes, whether legal or equitable, and the blended system prevails to its fullest extent as established by acts of Congress.

Our territorial statutes also provide that "there shall be in this territory but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be the same in law and equity." Comp. Stats. Mont., div. 1, sec. 1. In the case of Twell v. Twell, 6 Mont. 19, this court held that a woman who had been divorced, and obtained an order for fifty dollars per month alimony, to be paid by her husband, could maintain a creditor's bill to set aside a conveyance by the defendant, and to subject the property of her husband to the payment of her debt, without first issuing an execution on the order granting her alimony, or otherwise exhausting her legal remedies. In that case, Wade, C. J., delivering the opinion of the court, says: "It is immaterial whether the decree for alimony is called a judgment or not, or whether an execution might have been issued thereon. It was a debt of record ascertained by an adjudication in a court of competent jurisdiction, and the respondent thereby became a creditor, within the meaning of our statute. Proceedings by attachment, and the recovery of a judgment for the amount of alimony due, would not have aided her in the collection of her debt, or placed her in any better or stronger position than before such proceedings had been commenced. It was not necessary to have any further proceedings or adjudication to establish the respondent's debt and claim, and a creditor's bill was her

only remedy to aid her in the collection of what a competent court had declared she was justly entitled to." Twell v. Twell, 6 Mont. 28.

But even in the states where the distinction between the jurisdiction of courts of law and courts of equity is strictly maintained, creditors in cases like the present have been allowed to come into courts of equity for relief without first exhausting their legal remedies. In 1871 the supreme court of Illinois, in a case very similar to this, uses the following language: "The property in controversy is of the value of over one thousand dollars, and the bill alleges that the appellants have a mortgage upon the property. There are, then, successive liens and encumbrances, and if all are valid, there would be a trust fund to be distributed among the several claimants. The court was called upon to determine and adjust the rights and equities of the parties. A foreclosure by sale in the ordinary way could not have been made without injury to the adverse claimants. But it is contended that, as the bill denies the validity of the mortgage of appellants, there can be no investigation of the matter in chancery. There is no force in the objection. The bill alleges the existence of another mortgage, an adverse claim, and then charges that the same is void. If it is not void, the holders of it must share in the fund according to the equities of the parties. The allegations in the bill necessarily compel the court to determine as to the different liens. If, upon the hearing, it should be found that the mortgage of the appellants is void, it would be folly and inequitable to dismiss the bill, involve the complainants in costs, and remit them to their remedy at law. Equity is the law of reason, and cannot be chargeable with so great an absurdity." Hammers v. Dole, 61 Ill. 309, 310. And again, the supreme court of the United States, in a case from Louisiana, uses the following language: "The

bill charged that the conveyance of the partnership property, and the transfers by which it had been transferred to the railroad company, were illegal and fraudulent, that the bank had a privilege or lien upon the property, and it prayed that the various acts of sale, transfer, and conveyance by which the property that had belonged to the partnership had been conveyed to the railroad company, should be declared null and void, and that the property should be declared to be liable to the payment of the amount due the bank. Thus it appeared that the bill exhibited all that was necessary to give to the court, sit-, ting as a court of equity, complete jurisdiction over the subject of the controversy between the parties, and over all the equities now asserted by the complainant in his present suit." Case v. Beauregard, 101 U. S. 692.

These cases appear to us to be strictly in point, and worthy to be followed. Doubtless they could be readily multiplied by searching the reports of those states which, like this territory, have blended the jurisdiction of law and equity courts. Under our statutes, and the practice which must prevail in courts whose law and equity powers are blended like ours, it would clearly appear that, in a case like the present, where plaintiffs have brought a civil action for the enforcement and protection of their rights, or the redress and prevention of their wrongs, it is the duty of the court to grant such relief as the complaint, and the proof made thereunder, show them entitled to receive, without any distinction between law and equity. If they have a remedy at law, let it be enforced; and if the remedy is an equitable one, let it be applied in like manner. It is useless for courts to attempt to preserve artificial distinctions which the statutes have swept away.

Holding these views, in accordance with the authorities quoted, we cannot believe that the judgment should

have been rendered in favor of the defendants simply because, on an inspection of the plaintiff's pleadings alone, they may have had, or clearly did have, a plain, speedy, and adequate remedy at law. However, looking at all the pleadings on both sides, this is clearly a case calling for the exercise of equity powers, and a court of equity, in the strictest exercise of its chancery jurisdiction, could readily take cognizance of it. Here were three mortgages, two of which are alleged to be void. They must be examined, and their validity determined, and the priorities adjusted. Then they must be ranked according to their priority, and if foreclosed, the proceeds must be received and distributed under the direction of the court, and the several conflicting claims of all parties must be preserved and adjusted,—all of which would fall within the chancery powers of the court. This judgment on the pleadings, which is, in effect, a dismissal of the plaintiff's suit, or an involuntary nonsuit, compels them to come again into the same court, on the same state of facts, with probably a different prayer for relief. This, under our practice, is a vain and useless proceeding, and should not be required. But a judgment on the pleadings should never be rendered where material issues involved require the taking or evidence before they can be properly determined, and there are several issues which may be material to the decision of this cause which depend on the proof to be adduced, one of which is the possession of the parties under the several mortgages.

Unless all the material issues can virtually be settled by the pleadings, a judgment on the pleadings should not be rendered for either party. Holding, then, that the order of the court below, rendering judgment for the defendants upon the pleadings, was erroneous, this case must be reversed, and the cause remanded, to be pro

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cedeed with in accordance with the views expressed in this opinion. This judgment is therefore reversed, with costs.

Judgment reversed.

MCCONNELL, C. J., and GALBRAITH, J., concur.

ALDERSON, respondent, v. MARSHALL, appellant.

An affidavit for publication of summons should not contain conclusions of law. An affidavit was filed in an action, under the requirements of the act of 1883 (Acts of 13th Sess. Leg. Assembly Mont., p. 50), concerning publication of summons, for the purpose of obtaining service upon a defendant who, it was claimed, could not be found. The affidavit recited that "due diligence Lad been exercised in procuring actual service upon said defendant, but that his whereabouts in the territory could not be discovered." Held, that the facts upon which the conclusion of due diligence was based should have appeared in the affidavit, and that the same is insufficient.

Ad fault judgment is void unless service has been had according to law. Held, that all the proceedings, and the judgment based upon the affidavit above described, are void.

CIVIL PRACTICE. - It is discretionary with a court to allow a plaintiff to reopen his case. In the case at bar, after the plaintiff had rested, a motion for a nonsuit was made, and before passing on the motion, the court permitted the plaintiff to introduce other testimony: held, that there was no error, inasmuch as it lay within the discretion of the court to permit the introduction of such other testimony.

CIVIL PRACTICE. - A defendant may waive his right to a nonsuit. - In the case at bar, after the plaintiff had rested his case, the defendant moved for a nonsuit, which motion was overruled. He failed to abide by said motion, went into his defense, and evidence was subsequently introduced by the plaintiff which cured the defects upon which said motion was based. Held, that defendant had waived his right to complain of any error on the part of the court in overruling his motion.

ESTOPPEL. - A person who gains possession as a tenant, or under an agreement to purchase, cannot dispute the title of his landlord or proposed vendor. In the case at bar, the defendant gained possession of the premises in controversy from the plaintiff, either as his tenant or under an agreement to purchase his title: held, that he was estopped to deny the rightful possession of the plaintiff.

CIVIL PRACTICE. When an estoppel may be taken advantage of without being pleaded. In the case at bar, the estoppel hereinbefore mentioned was not pleaded, but the facts constituting the same were disclosed by the evi