Nordman v. Craighead

Searle, J. John P. Craighead, appellee herein, as guardian, etc., filed his complaint, in equity, in the Jefferson Circuit Court, against Eugene Nordman, appellant herein, to enforce a vendor’s lien for the’ parpóse of securing the payment of two promissory notes, etc. The complaint avers, among other things, that one Owen sold, by deed of conveyance, to the said Nordman, certain described real property; that a part of the price of said property was paid down; that notes were executed and delivered to the vendor for the balance; that a special lien'was reserved in said deed to secure the payment of said notes; that the notes wore assigned, together with said vendor’s lien, to said complainant, and that a copy of said deed would be filed, if necessary, etc. At the May term, 1871, of said court, the same being the return term, the said Nordman filed a demurrer to the complaint upon the following grounds, namely: 1st, That the complaint sets up the fact- of the existence of a certain deed to the land referred to therein, and does not make the same a part thereof. 2d, That-it does not appear from'said complaint that said deed referred to therein is filed and ma'de a part of the same. The demurrer was overruled; a decree rendered, as prayed for, and appellant appealed to this court. Two questions, we presume, were intended to be raised by this demurrer, namely : 1st, Should the deed, or a copy of the deed relied upon, as containing the reservation of the lien averred in the complaint, have been filed? and, 2d, Should it have been made a part of the complaint ? These questions will be considered together. Before our present system of civil practice went into operation, there was the following provision, applicable entirely to proceedings in equity: '“If either party shall rely on any record, deed or writing, the substance thereof shall be stated in his bill, answer or plea in the same manner as is required in pleading at law; and he shall file with his bill, answer or plea, as exhibits, an authenticated copy of such record, and a true copy of such deed or writing, and hold the original subject to the order of the court and inspection of other parties, in term time, if within his power.” Sec. 48, Chap. 28, Gould’s Digest. Under this section, where the pleader relied upon any record, deed or writing, the pleading should exhibit an authenticated copy of such record, or a true copy of such deed or writing, and it seems, under the old practice, such exhibitions made such copy a part of the pleading, and a failure to make such exhibition rendered the pleading bad upon demurrer. Such, at least, seems to have been the ruling of this court. Brodie et. al. vs. Skelton, 11 Ark. 121; Fletcher vs. Hutchinson, 25 Ark. 31. But this section has been repealed by the substitution of the amended Section 148 of the Code of Givil Practice, which is as follows: “If either party shall rely upon any deed or other writing, he shall file, with his pleading, the original deed or writing, if in his power, or a copy thereof. If he cannot procure such deed or writing, or a copy, thereof, he shall so state in his pleading, together with the reasons therefor, and if such reasons are sufficient, he may file the best evidence of the contents of such deed or writing in his power,” etc. This section is substantially the same as Section 48, Chapter 28, Gould’s Digest; and had our system of practice not been changed, we would not hesitate in applying the rulings of the court, upon this latter section, to the section under consideration. But our laws of civil proceedure having been completely changed by the substitution of the “Code of Civil Practice,” the provisions of this section must be applied and enforced in a manner not inconsistent with other provisions and requirements thereof. In relation to the application of the provisions of this section, and the rules relating thereto, we have derived much light from the decisions of the “Court of Appeals” of Kentucky, applying the provisions of a similar section in their “Code of Practice,” of which ours is almost a verbatim-oo-pj. The provisions of this section, though applicable to proceedings at law, are intended to apply chiefly to proceedings in equity. Their obvious object is to compel the pleader to file with his pleadings such writings as are relied on by him, and which may not be, strictly speaking, evidence, or the foundation of the action or defense. If they are not referred to, or relied on in the pleading, hut are such as may be properly introduced, in evidence, the pleader need not file them with his pleadings: Ruggies, etc. vs. Moore, 18 B. Mon. 824. The pleading must contain the facts constituting the cause of action, Or grounds of .defense when new matter in the answer or reply is relied upon: Secs. 109-116, Code of Civil Practice; Hill etc. vs. Barrett etc., 14 B. Mon. 86; Collins vs. Blackburn, Ib. 254. So much of the deed or writing relied on, and referred to, as may be necessary to show the character and purpose of such reliance, must be set forth either in terms or substance in the pleading: Dodd vs. King, 1 Met. 430; Riggs, vs. Motly, 2 Met. 88; Ruggles vs. Moore, 18 B. Mon. 824. The obvious reason of this, as well as of the filing of the writing, is to give the opposing party that knowledge of the true character of the demand or defense necessary to enable him to properly resist it. But the setting out, in the pleadings, of the matters relied on, in the deed or writing,.does not dispense with the necessity of the filing of the same. Not only should such deeds or -writings be filed, but they should be referred to in the pleading, and referred to in a manner sufficiently explicit to identify them. In proceedings in equity, exhibits referred to in the pleadings and filed become a part of the record, but not, however, as allegations or averments in the pleadings : Strother vs. Dovejoy, 8 B. Mon. 139; Harman vs Wilson, 1 Duval 322, and the authorities cited above. We regard these rulings as applicable to the section (148) under consideration, and as explicit, reasonable and just. In the case under consideration, the notes sued upon.were the foundation of the action ; the deed is simply relied upon in evidence of the vendor’s lien, avered in the complaint to have been reserved therein to secure the payment of the notes. The complaint sufficiently contains the facts, constituting the cause of action. It sets up properly that part of the deed upon which, the plaintiff relies for relief. It also sufficiently refers to the deed. But the plaintiff, instead of filing it, or a ■copy thereof, merely proposed in his complaint to file it if necessary. The deed, or a copy thereof, should have been filed. One other question .is here suggested, and that is, could the failure or omission to file the deed or a copy thereof be reached by clemurrer ? This question has almost been sufficiently answered by our above observations. The office of a demurrer, under the Code of Civil Practice, is to state objections apparent upon the face of the complaint or pleading: Sec. 114, Code of Civil Practice; Coe vs. Beckwith, 11 Abb. 299; 19 How. 399; 31 Barb. 339. The deed, in its nature, being-no part of the averments of the complaint, a failure or omission to file it, or a copy thereof, could not be reached by demurrer. The appellant’s remedy for the failure of the appellee to file the deed, or a copy thereof, was by a rule of court to be granted upon his motion therefor, compelling him to file it, or show cause why he could not: Ruggies vs. Moore, 8 B. Mon. 824. The court, therefore, did not err in overruling the demurrer. The decree of the court below must be affirmed.