¶1(dissenting).
¶2This is a suit in equity brought by plaintiffs to quiet title to 160 acres of particularly described land.
¶3Judgment on the pleadings was entered on motion of the defendants and plaintiffs have appealed.
¶4There are only two specifications of error. Each presents a question of pleading. That the issue involved be better understood, plaintiffs’ amended complaint and defendants’ answer thereto, other than the formal parts thereof, are here set forth in full.
¶5Amended Complaint. On September 4, 1951, plaintiffs filed an amended complaint, as follows:
“Amended Complaint
“Plaintiffs complain and allege, by way of an Amended Complaint
“I. That the plaintiff, Flathead Lumber Corporation, is now and at all times mentioned herein has been a corporation organized and existing under and by virtue of the laws of the State of Montana and that for many years last past all of the stock of such corporation has been and now is owned by the plaintiff, Willis C. March.
“II. That the plaintiffs are now the owners and actually in possession of and entitled to the possession of the following described real estate situate in the County of Flathead, State of Montana, to-wit:
“The North half of the Northeast Quarter and the East Half of the Northwest Quarter, of Section Twenty-nine, Township Twenty-seven North, Range Twenty-two West, M. P. M.
“III. That the said defendants claim and assert an interest therein adverse to the plaintiffs, and that the claims of said defendants are without any right whatever, and that the said defendants have not, nor has either of them, any estate, right, title or interest whatever, in said land or premises, or any part thereof.
“Wherefore, plaintiffs pray that said defendants may be *298required to set forth the nature of their several claims, and that all adverse claims of the said defendants, or either of them, may be determined by a decree of this court; and that by said decree, it be declared and adjudged that said plaintiffs are the owners of said premises, and that the defendants, or either of them, has no estate or interest whatever in or to said land and premises; and also that the said defendants, and each and every one of them, be forever debarred from asserting any claim whatever in or to said land and premises adverse to the plaintiffs, and for such other and further relief as to equity shall seem meet, and for their costs and disbursements herein.”
¶6Demurrer. On September 17, 1951, defendants served and filed a general demurrer to plaintiffs’ amended complaint. By order filed November 5, 1951, such demurrer was overruled and defendants allowed twenty days in which to answer. The amended complaint clearly states facts sufficient to constitute a cause of action, hence the disallowance of the general demurrer was proper. ,
¶7Answer. On November 20, 1951, and within the time allowed therefor, the defendants duly served and filed their answer to the amended complaint as follows:
“Answer
“Come Now the defendants in the above entitled action and answering the Amended Complaint of Plaintiffs on file herein admit, deny and allege as follows:
“I. As to the allegations in paragraph I on page one of said Complaint these defendants deny that they have any knowledge or information thereof sufficient to form a belief as to the truth of such allegations and therefore deny the same;
“II. Deny the allegations of paragraph II on page one of said Amended Complaint;
“III. Admit that these answering defendants do claim and assert an interest in and to the lands described in plaintiffs’ complaint in that the defendants are the owners of, in possession of and entitled to the possession of the lands described in plaintiffs’ complaint — The North Half of the Northeast Quarter and *299the East Half of the Northwest Quarter of Section 29, Township 27 North, Range 22'West M. P. M.
“IV. Deny each and every allegation contained in plaintiffs’ Amended Complaint not herein specifically admitted or denied;
“For a further and separate defense defendants allege:
“I. That the defendants are the sole and absolute owners in fee simple and entitled to the possession of the lands and premises, together with all tenements and hereditaments thereunto belonging, situate, lying and being in the County of Flathead and State of Montana to-wit:
“The North Half of the northeast quarter (N % NE and the East Half of the Northwest Quarter (E% NW^) of Section Twenty-nine (29) Township Twenty-seven (27) North Range Twenty-two (22) West M. P. M. and in the actual, possession thereof;
“II. That the defendants and their predecessors have been in the actual, exclusive, open, visible, notorious, hostile, continuous and adverse possession of the said lands and premises for more than ten years last past under certain claim of title and have during such period paid all taxes legally levied and assessed upon said land and premises;
“III. That the plaintiffs in the above entitled action claim, or may claim some right, title, interest in said lands and premises or liens or encumbrances thereon and have in their complaint in this action asserted certain rights and claims or claim of right or lien or encumbrance upon said lands which claims are adverse to defendants’ ownership and cast a cloud upon the defendants’ title thereto;
“IV. That said claim or possible claims of the plaintiffs and any right in and to said land are without any right or foundation whatsoever and that said plaintiffs have not nor has either of them any estate, right, title or interest whatever in said lands or premises or any part thereof and said plaintiffs are without any right whatsoever in said claims;
“Wherefore, defendants pray judgment as follows:
“1. That plaintiffs may be required to set forth the nature *300of their claims and that all adverse claims of the plaintiffs or either of them may be determined by a decree of this court;
“2. That it be declared and adjudged that the defendants’ title both legal and equitable to said land and premises be forever quieted in them; and it be declared and adjudged that the defendants are the owners of said premises;
“3. That the plaintiffs and each of them be declared to have no right, title, estate or interest whatsoever in or to said lands and premises or liens or encumbrances thereon and that all the plaintiffs’ adverse claims or possible claims therein of the plaintiffs and each and every one of them be declared void and the plaintiffs and each and every one of them be forever debarred from asserting any claims whatever in or to said lands and premises adverse to the defendants;
“4. For such other and further relief as to the Court may seem just and meet in the premises and for defendants’ costs of action herein as against any and all of the plaintiffs. ’ ’
¶8The answer is in two parts. Each part consists of four separately stated and numbered paragraphs.
¶9In the first part of their answer the defendants: (1) Deny having any knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph I of the amended complaint; (2) specifically deny the allegations of paragraph II of the amended complaint; (3) as to the allegations of paragraph III being the last paragraph of the amended complaint defendants specifically admit that “defendants do claim and assert an interest in and to the lands described in plaintiffs’ complaint in that defendants are the owners of, in possession of and entitled to the possession” thereof and (4) generally deny every allegation contained in the amended complaint not theretofore specifically admitted or denied in their answer.
¶10Thus does the first part of defendants’ answer fully meet all the requirements of subdivision 1 of section 93-3401 of the Revised Codes of Montana of 1947.
¶11New Matter. While the second part of the answer contains four separately stated and numbered paragraphs, yet in three *301of such paragraphs, to wit, in paragraphs numbered I, III and IV of that part of the answer designated as “a further and separate defense” the defendants plead a counterclaim and new matter wherein, inter alia, they specifically allege that “the defendants are the sole and absolute owners in fee simple and entitled to the possession of the lands and premises [particularly describing the same property described in the amended complaint] and in the actual possession thereof * "® * that the plaintiffs * …' claim some right, title, interest in said lands … which claims are adverse to defendants’ ownership and cast a cloud upon defendants’ title thereto; that said claims * * * of the plaintiffs … are without any right or foundation whatsoever and that said plaintiffs have not' … any estate, right, title or interest … * in said lands or premises or any part thereof. ’ ’
¶12The above quoted affirmative allegations of new matter so pleaded in paragraphs I, III and IY of the second part of defendants’ answer fully meet the requirements of subdivision 2 of section 93-3401, R. C. M. 1947, and clearly state facts sufficient to constitute a cause of action, counterclaim and valid defense wholly separate and apart from, as well as entirely unaided by the allegations of new matter set forth in paragraph II of the second part of defendants’ answer. See Conway v. Fabian, 108 Mont. 287, 304, 89 Pac. (2d) 1022. Thrasher v. Hodge, 86 Mont. 218, 224, 283 Pac. 219; Reynolds v. Fitzpatrick, 40 Mont. 593, 596, 107 Pac. 902; McCauley v. Gilmer, 2 Mont. 202, 204; Sullivan v. Dunphy, 4 Mont. 499, 511, 512, 2 Pac. 284, affirmed in Dunphy v. Sullivan, 117 U. S. 346, 6 S. Ct. 766, 29 L. Ed. 912.
¶13The defendants may counterclaim to quiet title in themselves to the same property and the above answer which alleges defendants’ title and asks to have it quieted in defendants is a counterclaim. See Brooks v. White, 22 Cal. App. 719, 136 Pac. 500; Betts v. Signor, 7 N. D. 399, 75 N. W. 781; Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511.
¶14In the instant case the new matter constituting a counterclaim *302and affirmative defense so pleaded requires a reply, R. C. M. 1947, sec. 93-3601, and where, as here, no reply is filed to such plea, defendants are entitled to judgment on the pleadings. See Anaconda Copper Mining Co. v. Thomas, 48 Mont. 222, 137 Pac. 380; State v. Quantic, 37 Mont. 32, 94 Pac. 491.
¶15By failing to file a reply the new matter so pleaded by defendants is admitted in toto, exactly as pleaded and without reference to the complaint. State v. Quantic, supra; Anaconda Copper Mining Co. v. Thomas, supra; 2 Bancroft’s Code Pleading, see. 808, p. 1159, note 8.
¶16The admission by failure to reply is as complete and effective as though made in terms. 2 Bancroft’s Code Pleading, sec. 808, p. 1159, note 9.
¶17Title by adverse possession or prescription may be proved under a general allegation of ownership in fee. See Merrill v. Hooper, 125 Cal. App. 80, 13 Pac. (2d) 786; Sullivan v. Dunphy, supra; Dunphy v. Sullivan, supra.
¶18Where as here the defendants have pleaded in their counterclaim that they are the sole and absolute owners of the fee simple title to the same property claimed by the plaintiffs it is not necessary ’that they go further and plead the manner by which they acquired their title for the simple reason that it is not necessary to plead the evidentiary facts by which the title relied on was obtained. See Nash v. Northwest Land Co., 15 N. D. 566, 108 N. W. 792.
¶19Counterclaims in quiet title suits are governed by the general rules and general code provisions applicable to counterclaims in other actions. Flint v. Dulany, 37 Kan. 332, 15 Pac. 208. Farmers’ State Bank v. Anton, 51 N. D. 202, 199 N. W. 582; Hough v. Wright, 127 Cal. App. 689, 16 Pac. (2d) 301.
¶20R. C. M. 1947, sec. 93-3601, provides:' “Where the answer contains a counterclaim, or any new matter, the plaintiff, if he does not demur, shall, within twenty days after service and filing of the answer, reply to such counterclaim or new matter, denying, generally or specifically, each allegation controverted by him, or of any knowledge or information thereof sufficient to *303form a belief, and he may allege, in ordinary or concise language, and without repetition, any new matter, not inconsistent with the complaint, constituting a defense to such counterclaim or new matter in the answer. ’ ’
¶21Under the above section, 93-3601, the plaintiff must file either a demurrer or a reply to such counterclaim or new matter set forth in the answer within twenty days after service and filing of the answer. Compare Hunger v. Nelson, 61 Mont. 104, 107, 201 Pac. 286.
¶22R. C. M. 1947, sec. 93-3603, provides: “Failure to reply. If the plaintiff fails to reply or demur to the counterclaim, the defendant shall be entitled to the same relief as a plaintiff upon the failure of defendant to demur or answer the complaint. If the answer contains new matter, and the plaintiff fails to reply or demur thereto within the time allowed by law, the defendant may move, on notice, for such judgment as he may be entitled to upon such statement, and the court may thereupon render judgment or “order a reference or assessment for damages by jury, as the case may require.”
¶23No demurrer, reply, or other pleading to the answer was ever filed in the instant case and defendants, after the time for filing reply expired, caused the default of plaintiffs to be entered.
¶24Thereafter, on motion duly noticed, the district court entered judgment for defendants upon the pleadings.
¶25In the judgment so entered the district court ordered, adjudged and decreed: That the plaintiffs take nothing by this action; that the claim of defendants to the described property shall be and is declared to be established; that the fee simple title to the property and the right of possession thereof be and is forever quieted in defendants as against the claims of the plaintiffs; that the claims of plaintiffs to the property are without any right whatsoever; that plaintiffs have no right, title, interest, claim or estate in or upon the described property or any part thereof and that defendants have their costs.
¶26After the entry of the judgment the plaintiffs made no application to the district court for any relief therefrom. Plaintiffs *304made no motion in the district court to vacate or set aside the judgment nor did they make any showing that the judgment was taken against them through their mistake, inadvertence, surprise or excusable neglect. R. C. M. 1947, sec. 93-3905.
¶27Without applying to the district court for any relief the plaintiffs have appealed to this court from the judgment so rendered against them.
¶28When, as in the instant case, the sufficiency of a pleading is challenged for the first time on appeal, the objection that it does not state a cause of action, counterclaim or defense is regarded with disfavor, and every reasonable inference will be drawn from the facts stated in order to uphold the pleading. So, also will the pleading be held sufficient if the claimed defect made the basis of the objection is not a matter going to the root of the cause of action but is such as might have been remedied by an amendment. Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, 282, 152 Pac. 481, L. R. A. 1916D, 836.
¶29In Crawford v. Pierse, 56 Mont. 371, 376, 185 Pac. 315, 318, this court said: “When the sufficiency of a complaint is challenged for the first time on appeal, the objection that it does not state a cause of action is regarded with disfavor, and every reasonable inference will be drawn from the facts stated necessary to uphold it. * … If upon any view the plaintiff is entitled to relief the pleading will be held sufficient. Raymond v. Blancgrass, 36 Mont. 449, 93 Pac. 648, 15 L. R. A., N. S., 976. A corollary of this rule is that a judgment rendered upon default will not be held void even though the statement of the cause of action may be so defectively made that it would have been open to general demurrer, provided its direct averments necessarily imply, or reasonably require, an inference of the facts necessary to supply the defect. County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81; Phillips on Code Pleading, sec. 352. ’1
¶30As before stated the instant proceeding is a suit in equity.
¶31In Pittsmont Copper Co. v. O’Rourke, 49 Mont. 281, 291, 141 Pac. 849, 852, this court said: “The present proceeding is in equity, and the matter set forth in the ‘further answer’ cannot *305be ignored if it is sufficient in substance to warrant denial of relief to tbe plaintiff or to require the imposition of conditions to the granting of the same. ’ ’
¶32The law is as stated by this court in Anaconda Copper Mining Co. v. Thomas, 48 Mont. 222, 224, 225, 137 Pac. 380, 381, viz.: “Asa matter of pleading, the allegations of defendant’s ‘further and separate answer and defense’ were such as to require a reply, and, since none was filed, he was entitled to have judgment entered without other proof than the pleadings. Rev. Codes, sec. 6562 [Rev. Codes of 1907, now R. C. M. 1947, sec. 93-3603] ; State v. Quantic, 37 Mont. 32, 94 Pac. 491; State ex rel. Montana Central R. Co. v. District Court, 32 Mont. 37, 79 Pac. 546. This conclusion is not affected by the reference to the lands in question as ‘the lands described in the complaint herein,’ instead of by legal description, since it not only could not mislead but served every substantial purpose attainable by a repetition of the description.
¶33“The plaintiff, asserting that the defendant claimed some right to the land which operated to cloud its title, brought him into court demanding that he set forth the nature of his claim. He did so, and, if the statement of new matter contained in the answer and admitted by failure to reply was such as to entitle him to any relief, it was the duty of the court to grant whatever relief he was entitled to upon such statement. Rev. Codes, sec. 6562; State v. Quantic, supra. Disregarding questions of form, the new matter alleged in the answer is confessedly, sufficient to support the affirmative relief awarded; but the contention is that such relief was not warranted here because there was no formal plea for it. If the action were at law, the want of a counterclaim complete within itself would be fatal; but the action is in equity, and the pleader is not concluded by his prayer. (Gillett v. Clark, 6 Mont. 190, 9 Pac. 823; Leopold v. Silverman, 7 Mont. 266, 16 Pac. 580; Davis v. Davis, 9 Mont. 267, 23 Pac. 715; Kleinschmidt v. Steele, 15 Mont. 181, 38 Pac. 827) nor by the form of his pleading (Davis v. Davis, supra). ‘It is a settled rule of equity practice that when the court has *306before it all the parties to any difference, and when it has obtained complete jurisdiction of the whole subject-matter, it will finally settle the whole controversy.’ Davis v. Davis, supra. Under this rule, the new matter set up in the answer was sufficient to support the decree. Davis v. Davis, supra; Walker v. Burks, 48 Tex. 206; Chicago, etc., Land Co. v. Peck, 112 Ill. 408; McCormick v. District of Columbia, 18 D. C. [534] (7 Mackey) 534; Sale v. Crutchfield, 8 Bush, Ky., 636.” See also State v. Quantic, 37 Mont. 32, 94 Pac. 491.
¶34The general rule in a quiet title action is that the pleader may allege his title or ownership in general terms and then under such general allegation he may prove whatever title he may have regardless of the source and including title by adverse possession. See Le Vasseur v. Roullman, 93 Mont. 552, 556, 20 Pac. (2d) 250, 251; Neel v. Ramelli, 138 Cal. App. 366, 32 Pac. (2d) 177; Moniz v. Peterman, 220 Cal. 429, 31 Pac. (2d) 353; Merrill v. Hooper, 125 Cal. App. 80, 13 Pac. (2d) 786.
¶35It is not requisite in their counterclaim that defendants deraign their title. See McKay v. McDougal, 19 Mont. 488, 48 PaC. 988; Thomson v. Nygaard, 98 Mont. 529, 536, 41 Pac. (2d) 1.
¶36Defendants need only state the ultimate facts in their counterclaim. They need only allege themselves to be the owners of the property, describing it, and that the plaintiffs assert some title thereto adverse to them. See Slette v. Review Publishing Co., 71 Mont. 518, 230 Pac. 580, and cases there cited.
¶37Whatever interest the pleader has may be quieted. If a title in fee, such interest may be quieted; if a less interest, the less interest may likewise be quieted. See Le Vasseur v. Roullman, supra; Pollock Mining & Milling Co. v. Davenport, 31 Mont. 452, 78 Pac. 768; Merk v. Bowery Mining Co., 31 Mont. 298, 78 Pac. 519, and cases there cited; McKinnie v. Shaffer, 74 Cal. 614, 16 Pac. 509.
¶38■Since the allegations of paragraphs designated I, III and IV of defendants’ “further and separate defense” are sufficient to present the question of title by adverse possession and to *307enable defendants at the trial to introduce proof of adverse possession it is clear that the allegations of paragraph designated II of defendants’ “further and separate defense” serves no necessary purpose. See Mondine v. Labaig, 44 Cal. App. 781, 186 Pac. 1047; Anderson v. Richards, 100 Or. 641, 198 Pac. 570; Merrill v. Hooper, supra.
¶39Defendants’ counterclaim and affirmative defense being complete and sufficient, wholly unaided by the allegations of paragraph II thereof, such additional averment that the defendants “have been in … adverse possession of said lands and premises for more than ten years last past” is mere surplusage that may be disregarded. See Sullivan v. Dunphy, 4 Mont. 499, 2 Pac. 284, affirmed Dunphy v. Sullivan, 117 U. S. 346, 6 S. Ct. 766, 29 L. Ed. 912; Gillespie v. Jones, 47 Cal. 259.
¶40That such is the law of this jurisdiction is conceded by the appellants for at page 5, subdivision B of their printed brief they correctly assert that defendants’ plea of adverse possession was surplusage.
¶41Paragraph II of the counterclaim being mere surplusage which not only may but which must be disregarded, R. C. M. 1947, sec. 93-3909, the counterclaim then rests upon the allegations of the remaining paragraphs thereof, namely, paragraphs numbered I, III and IY which are clearly sufficient to affirmatively state a good counterclaim and defense to the cause of action stated in plaintiffs’ amended complaint and to require a reply thereto by plaintiffs.
¶42The majority opinion completely overlooks these facts: 1. That the allegations of the first, third and fourth paragraphs of defendants’ “further and separate defense” sufficiently plead a valid counterclaim and de tense; 2. That the allegations of the second paragraph of such portion of the answer add nothing to the sufficiency of the pleading; 3. That the allegations of paragraph II thereof are mere surplusage; 4. That being mere surplusage paragraph II may be wholly disregarded; 5. That under the express mandate of R. C. M. 1947, see. 93-3909, “the court must * … disregard” such surplusage in the pleadings; *3086. That when such surplusage is disregarded the pleadings nevertheless will still admit of proof of defendants’ claimed title whether based upon deed, decree, will, statute, patent or adverse possession, Le Vasseur v. Roullman, supra, and 7. That defendants’ pleading being sufficient, with paragraph II thereof wholly disregarded, it is not necessary for defendants to amend their answer in any particular to admit of proof of the allegations of paragraph I, viz.: ‘ ‘ That defendants are the sole and absolute owners in fee simple … of the lands and premises” particularly described.
¶43Under the provisions of our Codes and the well established rules of pleading and practice that obtain in this jurisdiction the rulings, orders and judgment of the district court are correct for which reason they should be affirmed.
¶44Accordingly I here register by dissent.
¶45Supplemental Opinion.
¶46I agree with much of the foregoing dissenting opinion but it overlooks the fundamental rule in the construction of a pleading which is that when a general allegation is made followed by specific allegations regarding the same matter the specific acts are controlling and the pleader is confined in his proof to the specific acts pleaded. 41 Am. Jur., Pleading, sec. 33, p. 312.
¶47This court has adhered to this rule. State v. Schnell, 107 Mont. 579, 88 Pac. (2d) 19, 121 A. L. R. 1082, and cases therein cited.
¶48Here defendants did not rest upon their allegation of ownership, but went ahead and attempted to allege adverse possession as the means of obtaining ownership. Hence instead of the allegations designed to show adverse possession being treated as surplusage, the universal rule is that the pleader is limited to the specific acts alleged.
¶49The point stressed in the dissenting opinion was not urged by counsel and since the filing of the dissenting opinion has been *309delayed, this is the first opportunity to comment upon what it contains.