Charles S. Dodge, and with the sole purpose and intent of cheating and defrauding the plaintiff out of his lawful rights and property, and without paying any consideration therefor; that A. C. Dodge, George Churchill, William Fish, and Charles S. Dodge have refused to cancel the deeds or convey back the property to the plaintiff, or pay the plaintiff therefor; that the wives of the four male defendants named, respectively, are made defendants by reason of their inchoate right of dower in such real estate. After carefully considering the several allegations of the complaint, which, for the purposes of this case, we must, of course, assume to be true, we are constrained to hold that the complaint states a cause of action. It is loosely drawn, and some of the allegations of conspiracy and false and fraudulent representations are distant from some of the allegations of fact which they intend to characterize and do characterize. Nevertheless, taking them all together, they seem to be sufficient. The theory of the complaint seems to be to the effect that, at a time when the plaintiff expected to be absent for some time, his three partners, named, conspired with Charles S. Dodge, the son of one of them, to induce the plaintiff, and did induce the plaintiff, to convey and transfer his undivided one-fourth interest in the partnership property, exceeding $7,000 in value, to Charles S. Dodge, on the assumption that such conveyance and transfer would be for the convenience and advantage of the firm; that, in pursuance of such conspiracy, such partners falsely pretended that there was an error of $90 in the plaintiff's personal account with the firm, and the plaintiff was thereby induced to give to Charles S. Dodge a power of attorney to settle, compromise, and adjust any and all valid legal claims which then existed or might exist against the plaintiff and in favor of his three partners or either of them; that such three partners then, and in the absence of the plaintiff, made a false, fraudulent, and dishonest claim of $4,000 against the plaintiff and in favor of the firm, with the intention of cheating and defrauding the plaintiff out of his property, and that, in pursuance of such conspiracy to defraud the plaintiff, Charles S. Dodge, under such power of attorney, and well knowing that such claim was false and fraudulent, admitted that the plaintiff was indebted to the firm in the sum of $4,000; and that, after the plaintiff had revoked and canceled such power of attorney, Charles S. Dodge and wife, without authority, and with the intent of defrauding the plaintiff out of his property, and pursuant to such conspiracy, conveyed and transferred all of such property to the plaintiff's three partners. The statutes of uses and trusts, relied upon by counsel for the defendants, do not, in our judgment, have any application to the facts so alleged in the complaint. Rev. St. §§ 2071-2077. We must hold that the complaint states a good cause of action. Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522; Davis v. Davis, 60 Miss. 615; Traphagen v. Burt, 67 N. Y. 30. 2. The second ground of demurrer is that it appears from the complaint that the plaintiff has not legal capacity to sue. This implies a legal disability to sue, and does not go to the cause of action. Rev. St. § 2649; Murray v. McGarigle, 69 Wis. 483, 490, 34 N. W. 522. The action is not between partners, as such, but to restore to the plaintiff the legal title to his share of the partnership property as it was before he parted with the same. It leaves the partnership matters to be adjusted by the parties in an appropriate suit for that purpose. The order of the circuit court is affirmed. SIMS v. MUTUAL FIRE INS. CO. OF TOWN OF LA PRAIRIE. (Supreme Court of Wisconsin. Jan. 10, 1899.) PLEADING-INSURANCE-RAILROADS - NEGLIGENCE —Release—ESTOPPEL 1. Though, under Rev. St. 1898, § 2661, a reply to an answer containing no counterclaim is superfluous as a pleading, yet, where it was treated as a proper pleading, admissions therein bind plaintiff. 2. Where insured property is destroyed by the negligence of a railroad, the insured cannot release the right of action, which the insurer would have against the railroad on making payment of the loss, without releasing the insurer. 3. Where insured settles with a railroad for property alleged to have been destroyed by the railroad, and releases it, he cannot, in an action on the policy, deny that the property was so destroyed. Appeal from circuit court, Rock county; John R. Bennett, Judge. Action by George Sims against the Mutual Fire Insurance Company of Town of La Prairie. There was a judgment for defendant, and plaintiff appeals. Affirmed. Fethers, Jeffris, Fifield & Mouat, for appellant. Winans & Hyzer, for respondent. CASSODAY, C. J. The second amended complaint in this action alleges, in effect: That August 11, 1893, the defendant insured the plaintiff against loss or damage by fire or lightning for the period of five years, to the amount of $775, as follows: On his dwelling house, $500; on his barn No. 2, $275,—all situated on the premises described. That August 8, 1894, all the property so insured was destroyed by fire, whereby the defendant company became liable to reimburse the plaintiff for the loss thus sustained, according to the provisions of the contract. That due notice of the loss was given to the defendant. That August 10, 1894, the secretary of the defend ant, together with its committee appointed to adjust and determine the damages and less, visited the premises, examined into the question of damages sustained as the result of the fire, and designated $775 as the loss sustained by the plaintiff as result of the fire. That the committee and secretary were duly authorized to so act and adjust the loss sustained. That thereupon the defendant became liable for the amount so determined by the committee of adjustment. That the plaintiff had given notice of the loss, and accurately and faithfully performed his part of the contract. That an assessment was duly levied and collected, under authority of the defendant, to provide for such loss, payable to the plaintiff, amounting to $775. That the defendant thereby became indebted to the plaintiff in that amount, and the same became payable 90 days from August 10, 1894. That no part thereof had been paid, but that the defendant had refused, and still refuses, to pay any portion of the amount so adjusted. That the plaintiff had no other insurance on that property, and that the contract mentioned was the only protection which the plaintiff had against loss or damage by fire or lightning upon the property described. The defendant answered such complaint, and by such answer alleges, in effect: That the loss, damage, and destruction of the property suffered by the plaintiff was caused by the wrongful act and negligence of the Chicago & Northwestern Railway Company, a corporation that operated along its right of way adjacent to the plaintiff's said property a locomotive engine in such negligent and defective condition that fire escaped therefrom, and was thereby wrongfully and negligently communicated to the plaintiff's said property, causing the same to be destroyed, which destruction, loss, and damage suffered thereby were the same referred to in the plaintiff's complaint. That, by reason of the railway's wrongful and negligent acts so causing the loss and damage, the railway company became and was liable to the plaintiff therefor, or to this defendant, if it suffered loss thereby. That September 10, 1894, the plaintiff, for a valuable consideration, executed and delivered to the railway company a written instrument, under seal, wherein and whereby the plaintiff settled with the railway company for said loss and damage so caused, and released and forever discharged the railway company from all claims and demands by reason of the loss so caused, as aforesaid, a copy of which release is as follows: "In consideration of the sum of eight hundred and seventy-five ($875) dollars to us in hand paid by the Chicago and Northwestern Railway Company, the receipt whereof is hereby confessed, we hereby release and forever discharge said railway company from all claims and demands which we, or either of us, now have, or may have, against it by reason of buildings, crops, trees, household goods, and other personal property belonging to us being burned by a fire alleged to have been started by said company on or about the 8th day of August, 1894, near Afton, and in full of claims for all damage which we or either of us may have by reason of said fire. Witness our hand and seal at Afton, Wis., this 10th day of Sept., A. D. 1894. George Sims. [Seal.] George C. Antisdel. [Seal.] Parmelia S. Treat. [Seal.] Witness: George L. Treat, Attorney, Alexandria, Minn." The plaintiff, for an amended reply to such answer of the defendant, admits that he signed the certain paper writing, a copy of which is appended to the defendant's answer herein, being the same as above set forth; and alleges that the goods and property destroyed by fire, mentioned in the plaintiff's complaint, amounted to a sum greatly exceeding the amount of his loss as fixed by the defendant insurance company, added to the amount mentioned in the release in writing; and denies each and every allegation in the answer not admitted; and especially denies that the railway company caused the fire mentioned in the complaint as alleged in the answer. A motion was then made to strike out the second amended complaint and amended reply, but, on hearing the motion, the court ordered that the second amended complaint and amended reply, mentioned, be allowed to stand as the complaint and reply in the action. At the close of the trial the jury, by direction of the court, returned a verdict in favor of the defendant. From the judgment entered thereon accordingly, the plaintiff brings this appeal. The answer contained no counterclaim, and hence the amended reply to the same was superfluous as a pleading. Rev. St. 1898, § 2661. Nevertheless it was served and treated as a proper pleading, and, so far as it contains admissions of fact in favor of the defendant, it must be regarded as a part of the record in the case. It squarely admits that the plaintiff signed the release. That release is in writing, and signed by the plaintiff and two others, September 10, 1894, and speaks for itself. By admitting that he signed the release, he necessarily admitted all the facts stated in the release. Consequently he admitted that, in consideration of $775 paid by the railway company to the plaintiff, he thereby released and forever discharged the railway company from all claims and demands which he then had or might have against it by reason of the loss of property belonging to him and burned by a fire alleged to have been started by the railway company on or about August 8, 1894, near Afton, and in full of claims for damage which he might have by reason of such fire. The second amended complaint alleges that the insured property was destroyed by fire August 8, 1894. The amended reply alleges, and therefore admits, that the property so destroyed by fire, as mentioned in the plaintiff's second amended complaint, amounted to a sum greatly exceeding the amount of his loss as fixed by the defendant, added to the amount mentioned in the release. The plaintiff's witness George C. Antisdel, who was one of the signers of the release, testified, in effect, that the amount of his insurance was $100, and the plaintiff's $775, making in all $875, The assured cannot recover from both parties for the entire loss. The liability of the railway company is, in legal effect, first and principal, and that of the insurer secondary, not in the order of time, but in order of ultimate liability. Id.; Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co., 139 U. S. 88, 11 Sup. Ct. 490. Thus, it has been held that "where an insurance company pays the insured for a loss by fire occasioned by the fault of a railway company, and the insured afterwards receives the amount from the railway company, in satisfaction of his damages, he holds it in trust for the insurers, and they may recover it from him by suit in equity." Insurance Co. v. Hutchinson, 21 N. J. Eq. 107. So, in the New York case cited, it was held that, "if the assured receives the damages from the wrongdoer before payment by the insurer, the amount so received will be applied pro tanto in discharge of the policy." Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399. True, the plaintiff's amended reply denies that the railway company caused the fire mentioned in the complaint and alleged in the answer, but such denial does not conclude the defendant. It is still admitted of record in this case that the railway company paid to the plaintiff $775 to settle his claim against that com. pany for the property insured and burned by a fire alleged by him to have been started by that company. The release did not confine itself to so much of the plaintiff's claim for damages as was not covered by the insurance, as in the Pennsylvania case cited. Insurance Co. of North America v. Fidelity Title & Trust Co., 123 Pa. St. 523, 16 Atl. 791. The language of this release is sweeping, and releases and forever discharges the railway company from any and all claims by reason of the loss of the property. It expressly covers all claim which the defendant might have on making payment of the loss. The defendant would have no right of action against the railway company in case it should make payment. Such right of action has been taken away and destroyed in advance by the plaintiff's release. It is no answer for the plaintiff now to allege that the fire was not caused by the railway company, and hence that the defendant would have no right of action against that company upon paying the loss. It is enough to know that the plaintiff procured from that company $775 on the claim that it did cause the fire, and is now seeking to deprive the defendant of the benefit of that payment by alleging that it did not cause the fire. The judgment of the circuit court is affirmed. and that the amount of such losses was adjusted and allowed by him and the plaintiff and the defendant's committee at that sum, which is the same amount named in the release. With these admissions of record, there can be no question but what the fire mentioned in the second amended complaint and the amended reply was the same fire mentioned in the answer and the release, nor that the property mentioned in such complaint and reply is the same named in the answer and release, nor that the plaintiff received $775 and Antisdel $100 from the railway company in settlement and discharge of their respective claims against that company for destroying the property belonging to them, respectively, by starting the fire at the time and place named. The question recurs whether upon such admitted facts, and notwithstanding such settlement and discharge of the railway company, the plaintiff can nevertheless maintain this action to recover damages for the same loss against the defendant. The law on the subject seems to be pretty well settled. It has been held by this court that "an insurance company which has been compelled to pay the owner for property destroyed by fire has a right of action against the person who wrongfully caused the loss, without any assignment of such right by the assured, and, under our statutes, may sue in its own name." Swarthout v. Railway Co., 49 Wis. 625, 6 N. W. 314; Wunderlich v. Railway Co., 93 Wis. 132, 66 N. W. 1144; Hustisford Farmers' Mut. Ins. Co. v. Chicago, M. & St. P. Ry. Co., 66 Wis. 58, 28 N. W. 64; Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399. Had the defendant in this action paid to the plaintiff the insurance money due him on the contract of insurance, the plaintiff could not, properly, thereafter have sued the railway company for the loss of such property, without making the insurance company a party plaintiff, or, in case it refused, a party defendant. Pratt v. Radford, 52 Wis. 114, 8 N. W. 606; Wunderlich v. Railway Co., supra; Home Mut. Ins. Co. v. Oregon Ry. & Nav. Co. (Or.) 26 Pac. 857; Phenix Ins. Co. v. Pennsylvania Co. (Ind. Sup.) 33 N. E. 970. So, this court has recently held that "payment by an insurer of the full amount of a loss caused by a fire negligently set is a complete defense to an action by the insured against the person liable for the negligence; the acceptance of such payment being, in effect, an assignment of the cause of action to the insurer." Allen v. Railway Co., 94 Wis. 93, 68 N. W. 873. It is also well settled that, where property is thus insured and destroyed by the negligence of a railway company, the owner of the property cannot rightfully release or discharge the right of action which the insurance company would have against (Supreme Court of Wisconsin. Jan. 10, 1899.) the railway on making payment of the loss without releasing the insurance company. Hart v. Railroad Corp., 13 Metc. (Mass.) 99; Insurance Co. v. Weller (Iowa) 68 N. W. 443. BOUTIN v. CATLIN et al. APPEAL-DISCRETION JUDGMENT BY DEFAULT VACATION-TERMS. 1. On an appeal from an order made under Rev. St. 1898, § 2832, setting aside a judgment by default, the only question to be determined is whether the court abused its discretion. 2. In an action to foreclose a tax title on land worth much more than the amount of the tax, the copy of the complaint served on defendant was not signed or verified. Twenty-three days after the time for answering, plaintiff obtained a judgment by default, and eight days later defendant moved to vacate it, tendering an answer setting up a complete defense, and averring that plaintiff's attorney had agreed to permit him to answer after the time fixed by statute. Held, that it was not an abuse of discretion to grant the motion. 3. Where a judgment by default was vacated at the same term at which it was rendered, on condition that defendant submit to trial at that term, failure to require payment of costs as an additional condition does not show that it was not vacated on such terms as were just, as authorized by Rev. St. 1898, § 2832. 4. Imposition of terms is not necessarily a condition precedent to the granting of a motion to vacate a judgment by default at the same term at which it was entered, since the trial court may vacate or modify judgments during the same term at its discretion. Appeal from circuit court, Douglas county; A. J. Vinje, Judge. Action by Frank Boutin, Jr., against Charles L. Catlin and others. From an order vacating a judgment by default against defendants, plaintiff appeals. Affirmed. A. B. Ross, for appellant. Catlin, Butler & Lyons, for respondents. CASSODAY, C. J. The plaintiff, claiming title to the land described under and by virtue of two tax deeds, both executed October 21, 1897, and recorded October 26, 1897, -the one issued upon the sale of 1893, and the other the sale of 1894,-commenced this action by the service of the summons and complaint on the defendant Charles L. Catlin, the owner of the land, and his wife, November 22, 1897, and upon the defendant bank, holding a mortgage thereon, December 7, 1897, to bar the defendants as such owners, under section 1197, Rev. St. 1898. On January 20, 1898, being an adjourned day of the November term of the court for 1897, judgment was entered therein by default. Thereupon, and on January 28, 1898, the defendant obtained an order on the plaintiff to show cause before the court at the then present term thereof, February 1, 1898, why such Judgment should not be opened, vacated, and set aside, and the defendants allowed to file their proposed answer and defend the action, based upon the records in the action and such proposed answer and an affidavit of the defendant Charles L. Catlin. That from such affidavit and proposed answer it appears, in effect, that the copies of the complaint so served upon the defendants, respectively, were not either of them signed by any attorney, or verified, as appeared from an inspection of the copies thereto annexed and made a part thereof; that, at about the time of the commencement of this action, the plaintiff's attorney had commenced for the plaintiff and other clients a large number of similar actions for the foreclosure of divers tax deeds, against, among other defendants, divers clients of the firm of Catlin, Butler & Lyons; that there was a general agreement and understanding between them and the plaintiff's attorney that it would not be necessary for them to answer for such clients within the time limited by statute, but that, where desired, further time could be taken, and that judgment would not be taken by default in any case where they desired to defend; that in certain of such other cases the affiant was one of the defendants; that, about the time of the commencement of this action, the affiant informed the plaintiff's attorney that the plaintiff was not the lawful owner of such certificates, and that affiant would have a full and complete defense to any action brought by him, and would resist and defend any action brought to foreclose such certificates, or any deed or deeds obtained thereon; that it was well understood between him and the plaintiff's attorney that the affiant would defend in this and all other actions affecting any of his properties; that, prior to the expiration of the time for answering in this action, the affiant prepared an answer herein for all of the defendants, with copies of the same to serve, and a copy of which is thereunto annexed and made a part thereof; that about that time, and prior to the expiration of the time for answering herein, the plaintiff's attorney left Superior for the Eastern states, and did not return until about January 17, 1898; that during his absence the affiant called at his office to make certain stipulations or arrangements in regard to certain of the tax-foreclosure cases mentioned, and was told by the person in charge that the plaintiff's attorney was absent, and that there was no one who could act for him, and that all matters appertaining to such suits would have to await his return, that nothing would be done in any of his cases during his absence; that, relying upon such statement and upon the general understanding mentioned that no judgments would be taken by default, and upon the understanding that the affiant would defend in all of the cases where his property was affected, the affiant awaited the return of the plaintiff's attorney to make service of the answer herein; that Tuesday, January 18, 1898, and immediately after his return, affiant went to his office, but was informed that he had just returned, and was changing his place of residence, and would not probably be in his office that day; that affiant was out of town on Wednesday; that on Thursday, January 20, 1898, judgment against the defendant by default was entered; that affiant had no notice or information thereof until after the entry thereof; that January 20, 1898, was an adjourned day of the November term; that the circuit judge, A. J. Vinje, was engaged at the time in the trial of a cause in the southern part of the state, and Judge Holms was presiding in his place for the purpose of hearing the city injunction cases; that the affiant understood that Judge Holms would hear no other cases or business, and that all other business of the court would await the return of Judge Vinje, and so did not attend court on that day; that the total amount necessary to redeem said real estate from the two pretended tax deeds mentioned was $375.90, which had been tendered to the county clerk in payment thereof prior to the commencement of the action and prior to the issue of the pretended tax deeds; that the value of the property was upward of $5,000; that such affidavit also contained an affidavit of merits. Such proposed answer was duly verified, and alleged, by way of defense, some of the facts mentioned and others. In opposition to such application, affidavits of four different persons were read, including one by the plaintiff's attorney, and another by the person who served the summons and complaint, and he admits that the copies of the complaint served by him were not signed, but that such failure to sign was an inadvertence and unknown by him at the time. Upon the hearing of such motion, at an adjourned day of the November term of the court for 1897, held February 1, 1898, the court made an order reciting that, it appearing that the judgment was entered on the default of the defendants, and that such default was excusable, and that the judgment ought to be vacated and the defendants let in to answer and defend the action, therefore, it was ordered that the judgment and decree be, and the same was thereby, vacated and set aside, and the defendants given leave to answer within five days from the date thereof; and that as a condition thereof the action be placed upon the calendar for the February, 1898, term of the court, commencing on the same day, and stand for trial at such February term. From that order the plaintiff brings this appeal. Had the copies of the complaint served been signed by an attorney, the time for answering the same would have expired December 28, 1897. The judgment by default was entered more than 20 days after such time had so expired. The proposed answer was verified January 22, 1898. The application to open the default was made eight days after the judgment was entered, and during the same term of the court. It is conceded that the copies of the complaint served did not purport to be signed or verified. It is difficult to believe that the defendants, as owners of the property, would knowingly suffer it to be taken by a tax-title claimant without making any resistance. Whether any statements were made in behalf of the plaintiff upon which the defendants had the right to rely, and whether the facts and circumstances were such as to justify the setting aside of the default, were questions properly addressed to the discretion of the trial court. The only question for this court to determine is whether, in making the order setting aside the default, that court abused such discretion. Rev. St. 1898, § 2832; Hanson v. Michelson, 19 Wis. 498; Kennedy v. Waugh, 23 Wis. 468; Cleveland v. Hopkins, 55 Wis. 387, 13 N. W. 225; Whereatt v. Elis, 70 Wis. 215, 35 N. W. 314; Behl v. Schuette, 95 Wis. 443, 70 N. W. 559. Some of these cases go to the extent of holding that "such discretion must be a legal discretion, and where an application, made in time, presents a case within the statute, and is accompanied by a verified answer alleging a good defense on the merits, it is a manifest abuse of discretion not to open the judg ment upon reasonable terms." The answer abounds in denials, and alleges that the county never parted with the title to the tax certificates upon which such tax deeds were respectively issued, and that the defendant Catlin had tendered the redemption money, and numerous other allegations. Of course, the validity of the tax deeds is not to be tried on affidavits. The case presented, under the rule stated, seems to have been sufficient to justify the court in setting aside the default, and allowing the defendants to file their answer and go to trial at the term of the court then about to be commenced, as ordered. True, the court did not require the defendants to pay costs; nevertheless, it was upon the terms mentioned, and which, under all the circumstances, the trial court manifestly regarded as just. To require the defendants to go to trial at the term commencing February 1, 1898, instead of allowing the case to go over to the June term of the court, may have been of far more importance to the plaintiff than the mere imposition of costs would have been. We are constrained to hold that the making of such order was not an abuse of discretion. Besides, the application to set aside the judgment was made promptly on ascertaining the fact, and at the same term of the court that it had been entered; and that was one of the things to be considered in deciding the motion. Robbins v. Kountz, 44 Wis. 561; Landon v. Burke, 33 Wis. 452. What has thus been said is on the theory that the order setting aside the judgment, and allowing the defendants to answer and defend, was justified only under section 2832. Rev. St. 1898. But, as indicated, that order was made on an adjourned day of the same term of the court at which the judgment was entered, and hence the imposition of terms was not necessarily a condition precedent to the granting of the order. Of course, the discretion which a trial court has the right to exercise over verdicts and judgments entered at the same term must be a legal discretion; nevertheless, such discretion is very much greater when exercised at the same term than it would be if exercised at a subsequent term. R- v. R, 20 Wis. 331; Stilson v. Rankin, 40 Wis. 531. Thus, it has been held by this court that the trial court may, on its own motion, modify or vacate an order or judgment during the same term at which it |