An examination of the record in this case shows some irregularities with reference to the hearing and disposing of motions and demurrers, and action upon papers filed after time fixed by the statute for filing such papers, without first obtaining leave of court therefor; but inasmuch as the parties interested did not, at the time of the filing of such papers, make specific objection thereto, nor thereafter attack such filing by sufficient motion, it will be presumed that such papers were filed by leave of the court, particularly as the parties interested, the defendants, filed their answers thereto'. The amended complaint of the plaintiff is attacked in no way except by motion to strike the same from the files, and then only fob the reason that the same was filed after the defendant tf. Y. Mangum had filed his answer in the case in which he says he pleaded a counterclaim, and because the plaintiff had filed no reply to said counterclaim, and not because the same was filed out of time without leave of court, and prayed for judgment on the pleadings. The separate answer of S. S. Case and W. H. Walker denies every allegation in said complaint not admitted in their answer. They admit the residence and citizenship of the parties and the execution of the note and mortgage as set forth as exhibits in plaintiff’s complaint; and, second, “defendants specially deny that plaintiff is the bona fide holder of said note for a valuable consideration, and that he became possessed of said note in the usual course of business, and allege, and so charge, that plaintiff obtained possession of said note through fraud and misrepresentation, and without any consideration whatsoever;’’ *532and, third, “specially deny that the same has been assigned or transferred to plaintiff, and deny that he has any interest in the same, but that the same is, in truth and in fact, the property of R. Y. Mangum, the original payee in said note, and that defendants, from time to time, in good faith believing that said R. Y. Mangum was the rightful owner and holder of said note and mortgage, have fully paid off and discharged said note, without notice or knowledge of plaintiff’s interest, if any he has, in and to said note, to the said R. Y. Mangum, and that after full payment of said note said mortgage has been and is fully released and satisfied of record, and the original delivered up to these defendants.” They plead, fourth, ‘ ‘that said R. Y. Mangum is insolvent, and that said plaintiff, as is shown by the answer of said R. Y. Mangum filed herein which these defendants allege to be true and adopt the same, is indebted to R. Y. Mangum in a sum exceeding fi-he amount • of the note sued upon, and that Ed. P. Ingle is a nonresident, and has no property in the jurisdiction of the court.” The separate answer of R. Y. Mangum, omitting caption, is in words and figures as follows, to wit: “Now comes the defendant R. Y. Mangum, and for answer to plaintiff’s petition filed herein alleges: First. That on the 22d day of September, 1894, the plaintiff. Ed. P. Ingle, was possessed of a certain printing office, presses, furniture, and fixtures situated in‘the town of Norman, Oklahoma territory, and known as the ‘Norman Transcript, ’ the' business of said office being publishing the weekly newspaper known as the ‘Norman Transcript,’ and of a monthly journal known as the ‘Oklahoma School Herald, ’ of job printing, and a general printing business. Second. Said plaintiff being desirous of selling said property and business, and the good will of the same, falsely and fraudulently represented to defendant that the said printing office was doing a lucrative and paying business; that said printing office had done a cash business for the six months immediately preceding the month of September, A. D. 1894, *533amounting in the aggregate to the sum. of $1,349.20, and that the cash receipts of the office for said months exceeded the expenses of the office an amount exceeding one hundred dollars per month; that said office had always paid plaintiff as much or more than one hundred dollars per month above the actual and necessary expenses of said office; that if defendant would purchase said business, and retain the then manager, O. W. Meacham, that said office would net a profit to defendant, above all expenses, a sum to exceed one hundred dollars per month, under the management of said O. W. Meacham. Third. Defendant, confiding in the representations of the plaintiff, purchased said printing office, business, and good will thereof for the sum of $3,000, then and there paying in cash the sum of $200, and delivered to plaintiff the $500 note signed by Case and Walker, payable to defendant, and which is the subject of plaintiff’s cause of action as set forth in his petition herein, and executed and delivered to plaintiff his 23 promissory notes for $100 each, payable thirty days apart, commencing November 10, 1894. Fourth. That the business of said printing office was not, before nor at the time of making said false and fraudulent statements and representations, a paying and lucrative business, and at no time did the income of said office amount to as much as $150 per month, and the said business never paid a net profit during the six months aforesaid, or before, of as much as $100 per month, as plaintiff at the time well knew; that said business had been running at a dead loss for several months prior to the time defendant purchased, which was well known to the plaintiff at the time. Fifth. That although defendant, relying upon the representations of plaintiff, retained the said O. W. Meacham in control and management of said business, running the same for four months after said purchase, during all of said time said business failed to pay the running expenses of said office, and resulted in a dead loss to defendant. Sixth. That, to secure the deferred payments afore*534said defendant made and delivered to plaintiff a mortgage on said printing office and business, by the terms of which, if default were made in the payment of any of the installment notes of $100; as aforesaid, plaintiff should be entitled to assume possession of said business and office, and, after refusal of defendant to pay the second and third installment notes, plaintiff took possession of said printing office and business, and now holds the same together with supplies furnished said office, put in by defendant, amounting to the sum of $55. Seventh. That, by reason of the aforesaid false and fraudulent representations of plaintiff, defendant paid plaintiff the sum of $200 in money, as aforesaid, and delivered plaintiff the $500 Case and Walker note, aforesaid and paid the first installment note, amounting to the sum of $100, and furnished said office with necessary supplies, which were taken possession of by plaintiff, in the sum of $55, and expended four months of his time and. labor attempting and trying to make said office pay, as defendant reasonably expected it to do, reasonably worth the sum of $75 per month, or a total of $300, and in. all defendant has been damaged in the full sum of $655, besides the amount of the Case and Walker note aforesaid. Eighth. The plaintiff still holds possession of two of said installment notes for $100 each, and refuses to deliver the same to defendant. Wherefore, as plaintiff obtained the possession of said $500 note, the subject of this cause of action, through fraud and deceit, defendant prays the judgment of the court that the two notes, of $100 each, be also delivered up to defendant, and canceled, and that defendant have further judgment of the court over and against the plaintiff in the sum of $655, his damage as aforesaid, costs of suit, and' such general and special relief as in equity and good conscience the court may deem fit and proper.” To this separate answer of Man-gum’s, and also to the separate answer of Case and Walker, the plaintiff filed his demurrer that the same did not state facts sufficient to constitute a defense, and at the same time *535the plaintiff filed his reply to the separate answer of Mangum.
Equitable Defense. The answer of Mangum and the reply of the plaintiff raise an issue as to the fraudulent representations and deceit, and as to the failure in consideration in the transfer by Mangum of the Case and Walker note to Ingle. We think that the separate answer of Mangum stated an equitable defense against the claim of Ingle on said promissory note. If Ingle had obtained this note through fraud and deceit from Mangum, as well as other valuable considerations, and held other notes of Mangum’s which Mangum was endeavoring to have canceled, we think that the matters of the transfer of the note, and the means through which the note was obtained by Ingle, were so closely connected as to be one and the same transaction, and that Man-gum would have the right to plead, not by way of counterclaim or set-off, these facts, but as matters of defense; and, if the testimony should establish his claims, that he would be entitled in this suit in equity to have the sale to him by Ingle set aside, and his notes canceled, and the Case and Walker note returned to him, and the demurrer to his separate answer should have been overruled; and, inasmuch as Case and Walker make Mangum’s answer a part of their separate answer, Mangum should be relegated to his original position in reference to said note. The demurrer to the answer of Case and Walker should, in like manner, have been overruled, and the parties permitted to test the facts by trial. It is not necessary to pass upon the other questions involved in this case, as, for the reasons foregoing, the case is reversed and remanded, with directions to the lower court to overrule the demurrers to the separate answers of the parties, and proceed with the case according to law.
Clayton, C. J., and Thomas and Townsend, JJ., concur.