that must be entered below. No reply to the answer was served, nor did defendant move for judgment as for want of a reply. The trial was manifestly conducted upon the theory that all the allegations of the answer which were pleaded as a counterclaim were at issue. Testimony was offered, without objection; to prove and disprove the averments of the answer, and the court, without objection or protest, made its findings of facts and conclusions of law upon the subject-matter of the counterclaim. In this court the claim is made by defendant's counsel that, inasmuch as plaintiff did not reply to the counterclaim, he admitted all the facts stated therein; citing § § 4919, 4933, Comp. Laws. Counsel say: “The question to be determined on the appeal then is, do the facts stated in the defendant’s counterclaim entitle him to the relief demanded?” We think the new matter pleaded in the answer constitutes a counterclaim, within the meaning of subdivision 1, § 4915, Comp. Laws. The new matter constitutes a cause of action in defendant's favor and against the plaintiff, and such new matter is “connected with the subject of the action.” Bliss, Code PI. § 374; Jarvis v. Peck, 19 Wis. 74; Eastman v. Linn, 20 Minn. 433, Gil. 387, and cases cited. A reply was requisite under the statute, but a reply may be waived, and we are of the opinion defendant waived a reply by proceeding at the trial to treat the new matter in the answer as being traversed and at issue without a reply. Bliss, Code Pl. § 397; Netcott v. Porter, 19 Kan. 131; Matthews v. Torinus, 22 Minn. 132.
Another point raised in this court, but which does not appear to have been suggested below, is this: Counsel for defendant claim that “all considerations as to the 1887 and 1888 taxes are eliminated.” The position taken is that, the action being brought under § 5449, Comp. Laws, the court can determine only adverse “estates and interests” and that a mere “lien,” such as is evidenced by the tax certificates, cannot be litigated. Defendant cites Bidwell v. Webb, 10 Minn. 59, Gil. 41, which sustains the point, and holds under a statute which, when the case was decided, was similiar to ours, that “liens cannot be determined in such an
