Garis v. Fish

Per Curiam: The plaintiff complains that the court below refused him a judgment for want of a sufficient affidavit of defence. In all such cases, however, the plaintiff has the consolation of knowing that he has a chance to submit his cause to an impartial jury, with a fair chance of a verdict if he is entitled to it. For the same reason, we are not disposed to reverse in such cases where the right to judgment is not clear. In the present case; we are all of opinion it should go to a jury. It is conceded that Mr. Bossert paid the full price for the property in good faith to Mrs. Fish, from whom he purchased it. There was nothing to put Mm upon notice that Mrs. Fish held the title in fraud of her husband’s creditors. The $1,000 judgment entered against her husband was not notice of any defect in his wife’s title. Nor is there any averment, in the plaintiff’s claim filed, of any such fraud, beyond the single allegation that at the time the $1,000 judgment was entered there was in the defendant “ a legal ownership ” of the real estate in question. Had there been a distinct averment that the title was held by Mrs. Fish collusively, for the purpose of hindering and delaying her husband’s creditors, with a statement of the facts and circumstances from which the fraud was inferred, it would doubtless have required the defendant to have negatived such averments in the affidavit of defence. But the defendant is not called upon to deny what the plaintiff has not alleged. Upon a trial before a jury the plaintiff may possibly succeed in reviving bis judgments against the terre-tenant, but as the case now stands, there is not sufficient to justify us in entering a judgment against him. The order discharging the rule for judgment is affirmed.