National Wall Paper Co. v. M'Pherson

Pemberton, C. J. The only question presented by this appeal is as to whether the district court erred in refusing to order judgment on the pleadings in favor of the plaintiff. The answer does not specifically deny the allegation's of the com [358] plaint to the effect that the instruments attacked were fraudulent and- made with the intent to hinder and delay the creditors of defendant McPherson. There is a general denial in the answer of all the allegations of the complaint not specifically admitted; but we think this denial alone would not have been sufficient to prevent judgment on the pleadings. After the admissions shown in the statement, the answer sets up affirmatively that the deeds or conveyances attacked for fraud were made for the purpose of securing and paying defendant McPherson’s debts then due and owing, and in consideration of such debts. This constitutes the substantial averment of the answer. While it does not specifically deny the allegations of fraud contained in the complaint, the answer sets up affirmatively facts which, if true, constitute a defense. Tudor v. De Long (Mont.) 46 Pac. 258, and authorities cited. The facts pleaded affirmatively in the answer are tantamount to, and virtually constitute, a denial of the allegations of the complaint. In Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409, a suit brought to recover possession of a mining claim and damages for removing ore therefrom, in which the question of pleading here involved was treated, this court said: “The plaintiffs charge that the ore was taken and extracted from ground owned by them, and this the defendant denies, by alleging that he owns the ground from whence the ore was extracted and taken. No completeness or distinctness would have been added to this issue, if the plaintiffs had repeated in their replication what they had averred in their complaint, and alleged again that this ore was taken from the ground owned by them, by denying that it was taken from ground owned by the defendant. ” We think the affirmative allegations of the answer were, in effect, a substantial denial of the allegations of fraud contained in the complaint; as much so as if it denied specifically every allegation of the complaint in relation thereto. The judgment appealed from is affirmed. Affirmed. Hunt and Buck, JJ., concur.