Clark v. Croft

McCay, Judge. 1. We do not exactly understand why the bill offered as a plea was stricken. It was sworn to according to the form prescribed by the rule of court. Verification to the best of one’s belief of matters not in one’s own knowledge, but resting in the knowledge of others, is all that any man can do, and as pleas must, from the nature of things, often turn on facts not [371] known to the defendant of his own knowledge, it follows that this kind of verification ought to be sufficient. 2. We think, if the facts set forth in the bill be true, the defense ought to succeed. In effect the paper set forth is an agreement to make a title free from liens and incumbrances. It is alleged that at the time of the bargain, certain liens and incumbrances were known to exist, and that the object in putting this unusual condition in the bond was, that they were to be removed before the money was paid. As these words are in the bond, in writing, and as we understand the meaning of them, we take it that the title is to be made not only with a warranty against liens and incumbrances, but that there were to be no liens or incumbrances when the money was paid and the title made. There would seem to be no other motive for the special introduction of these words; good warranty title would, under our law, cover liens and incumbrances, and it is usual to draw bonds for titles with these words only. If this be the proper construction, and we think it is, especially in view of the facts as they are stated to have existed at the time, Ave think it is a condition precedent that all liens should be removed before payment, and that the defendant may resist a judgment as long as he can show such liens exist. This is not the case of a simple warranty where the maker of the notes relies on the warranty, but by.the terms of the contract, the parities have made the removal of the liens a condition precedent. On the question of continuance we say nothing, as vve would not interfere with the discretion of the court. We will, however, say that it must be a very strong case indeed when an amendment to the pleadings — even to put in a plea where there is none — ought, under our laAAr, to be denied. The statute says that either party may amend in any stage of the case, and except as to dilatory pleas and pleas of non est faotum, Avhen, from the nature of things, the first term is the only time to plead, unless for strong cause shown, we know no limit to the right to amend, except the terms the judge may put upon the amending party. Judgment reversed.