Dick v. Doughten

Ridgely, Chancellor. It is now for the first time objected in argument for the defendants, that William Doughten, was a purchaser without notice, for a valuable consideration. Had exceptions been taken to the answer it might have been doubted whether it was sufficient. After deducing the title from James Dick to Amasa Smith, it is then stated that “ the said Amasa Smith, by a certain “ deed of bargain and sale, duly executed by the said “ Amasa Smith and Lucretia his wife, bearing date the “ twenty first day of March, in the year of our Lord, one “ thousand eight hundred and fourteen, sold and conveyed “ the said tract to this defendant, his heirs and assigns; 16 that this defendant gave a full, fair, and just price, for “ the said tract of land, without any notice, knowledge, or “belief that there existed any defect in the title of the “ deceased, or that the said tract of land was liable to any “ claim or demand of dower by the said Martha Dick, or “of any other person.” A plea of purchase for valuable consideration, without notice, must aver the consideration and the actual payment of it. Mitford, Pl. 216 ; and Mitford cites, Hardingham vs. Nicholls, 8 Atk. 304, and Maitland vs. Wilson, 3 Atk. 814. In the latter case the defendant ^pleaded the purchase deed, the several sums which were the consideration, and among the rest, a sum of £4,958, money really paid. Lord Hardwicke says, “ it “ is pleaded in such a manner that it seems rather a recital “of the purchase deed; whereas, it ought to have been “ pleaded distinctly and separately from the recital; and it “ should have been averred by the plea, that the sum — 327 — “ mentioned as the consideration in the deed was really and “ bona fide paid. This being a plea to the relief, and not “ to the discovery, if it was directed to stand for an answer, “ without the words,“with liberty to except,” it would “be establishing it as a good answer; and therefore to “ prevent this, it is necessary these words should be added.” That case shows that in an answer the consideration money must be averred to be paid, distinctly from the deed. And from 1 Harrison's, Ch. Pr. 224, it appears necessary to set forih in the answer, that the purchase was made for a real and valuable consideration in money paid. In Gilb. Eq. 57-58 ; Mitford’s, Pl. 215-216; Sugd. on Vend. 553, 558, this subject is treated pretty much at large in relation to pleas. And it is evident from the case of Maitland vs. Wilson, that the answer must be full and particular; and, indeed, where the defence is made by answer, without a plea,it is necessary that thereshould be the same precision, and that all the matters making the defence should be as clearly and as explicitly stated, as in a plea. In this answer the defendant alleges that he gave “ a full, fair and just price” for the said tract of land; but whether he ever paid a valuable consideration, or whether this price was given in money, or by exchange of lands, or in any other article, does not appear. A settlement in consideration of marriage is equivalent tu a purchase for a valuable consideration and may be pleaded in the same manner. Mitf. Pl. 218 ; Rep. Temp. Finch. 9. But then the plea must set forth the settlement and the lands comprised in it, with sufficient certainty. Mitf. Pl. 219 ; Atk. 52. Even in the deed of A maga. Smith, said to have been made to Doughten, no valuable consideration is mentioned; and in pleading a deed of bargain and sale, if money or a valuable consideration i snot shown, it will be bad on demurrer. 2 Com. Pig. 66, Bargain and sale.( B. 12.) And in pleading a release in Chancery) the defendant must set out the consideration upon which the release was made. Mitf. Pl. 209. In this case — 328 — it is the essence of the defence, that a voluble consideration was paid by Doughten. This should not be shown only by recital of the deed ; but according to Maitland vs. Wilson, 3 Atk. 304, it should have been distinctly averred separately from the recital of the deed. The phrase,“ a full, “ fair and just price for the land,” may mean any adequate compensation; distinct from a valuable consideration. However, this answer has not been excepted to, and it will be here taken as sufficient. It is now to be considered whether any proof has been made that William Doughten, gave a full, fair and just price for this land ; for the replication puts the defendant upon proof of his answer. 1 Harrison’s Ch. Pr. 407 : Coopers Equity, 328. And so as to a plea. 3 P. Wm. 94. And the purchase for a fair price should be proved distinctly from the deed of Amasa Smith. That might be good evidence for the payment of any consideration therein mentioned between Smith and Dough-ten ; but it is not proof as between Doughten and Dick’s widow, nor between Doughten and any third person. On reading the depositions of the witnesses taken on behalf of the complainant, some of these speak of having heard that Doughten paid $3,000.00, for the lands ; and one of them heard Doughten say so ; but the declaration of Doughten, and the hearsay of others, is not evidence, and amounts to no proof of the payment by Doughten of a full, fair and just price for the land. Consequently, as there is no such proof, the defendant has failed in establishing that fact, and of course a final decree must be made for the complainant.. I might here close this part of the case; but two other points were made in the argument. First, on the part of the complainant, it was objected that the defendant could not make the defence, by answer, of his being a purchaser for a valuable consideration, without notice. The second point was, whether the defendant can avail himself, by — 329 — plea or answer, of his being a purchaser for a valuable consideration without notice, as against a claim, of dower in the complainant. First, I think a defendant may avail himself of this defence by answer as well as plea. The following authorities support this opinion:—1 Harrison’s Ch. Pr. 244 : Harris vs. Ingledon, 3 P. Wms. 91, 95 ; 2 Ves. Sr. 492. Lord Hardwicke says, in Chapman vs. Tamer, 1 Atk. 54, “ the defence “ proper for a plea must be such as reduces the cause to a “ particular point, and from thence creates a bar to the “ suit, and is to save the parties the expense of an exami- “ nation ; and it is not every good defence in equity that “ is good in a plea, for where the defence consists of a “ variety of circumstances, there is no use of a plea; the “ examination must still be at large, and the effect of al- “ lowing such a plea, will be, that the Court will give “ their judgment on the circumstances of the case before “ they are made out by the proof.” ■ In addition, Lord Bedesdale’s Treatise on Pleadings, 246, may be consulted on this subject. The defence in this case might, possibly, have been better made by a plea and by answer in support of the plea; but I will not enlarge on this subject. The second might have been much the most important point; but from the failure of proof in the defendant, it is not of the first consideration in the cause. However, I shall not pass it by without notice. In Williams vs. Lambe, 3 Bro. Ch. Rep. 264, which was a bill for dower, and in which the defendant pleaded to the discovery and relief that he was a purchaser for a valuable consideration, without notice of the vendor being married, Lord Thurlow said, “ the only question was, whether a plea of purchase “ without notice would lie against a bill to set out dower; “ that he thought where the party is pursuing a legal title, “ as dower is, that plea does not apply, it being only a bar “ to an equitable, not to a legal claim.” He therefore overruled the plea. Mr. Park, in his Treatise on Dower, 328, — 330 — says, the case of Williams vs. Lambe may be supported on its particular circumstances, on the ground th'at the plea covered too much, being to the relief as well as to the discovery. The dowress had a right to recover against the purchaser at law, and if it be established that a court of equity has a concurrent jurisdiction to assign dower, such a plea to the relief would appear to be inexplicable ; although it might be good to the discovery, since the relief prayed is not the assistance of the Court to enable the dowress to make good her title at law, but merely to give her the effect of a recovery at law. It is, indeed, noticeable that the observations of Lord Thurlow seem distinctly addressed to the plea, as a plea to the relief, and his omitting to intimate that such a plea might be good as to the discovery, may possibly be accounted for by the consideration that in a case so circumstanced, a plea to the discovery would almost unavoidably be over-ruled by the answer. How, in the case of Williams vs. Lambe, I do not perceive the ground, for Mr. Park’s distinction ; for as the case is reported by Brown, although Lord Thurlow’s remarks were addressed to the plea, yet they distinctly state that the plea did not apply as a bar to a legal claim; that dower was a legal claim, and therefore the plea was over-ruled. But suppose Mr. Park’s distinction to be correct, this answer does not object to making the discovery ; and it does state the several deeds of conveyance, and makes a full discovery as to the title ; and then, as I clearly understand it, the fact that the purchase for a full, fair and just price, without any notice, knowledge or belief that there existed any defect in the title, or that the said tract of land was liable to any claim or demand of dower by the said Martha Dick is opposed as a defence to the relief. This is a legal, not an equitable title, and I should decree in favor of the complainant, had the defendants supported their answer by proof, unless the admission of the sufficiency of the answer by not excepting to it might have — 331 — interposed a difficulty. As to the rents and profits, the decree will be confined to the 21st of March, 1814, the time of the purchase made by William Doughten. The other purchasers are not parties; and whether the arrears of rent, or anything, was paid to this complainant previous to Doughten’s purchase does not appear. If the complainant wished to go back to the death of the husband, all the purchasers antecedent to Doughten should have been made parties. As that has not been done, the account for the arrears of rents and profits will he limited to the date of his purchase. The Act of Limitations has not been pleaded nor insisted on in the answer, and therefore it can have no effect.