Lupo v. True

The opinion of the Court was delivered by Simpson, C. J. The plaintiffs, appellants, heirs-at-law of Bebecca Copeland, deceased, instituted this action against the respondents, alleging in their complaint, that some time prior to November 3d, 1849, one Laban W. Moak, a brother of the said Bebecca Copeland, had in his hands a certain sum of money belonging to the said Bebecca; that at her request, and to preserve the same from the marital rights of her husband, the said Moak bought with this money a tract of land, lying in Kershaw county, containing some five hundred acres; that the deed from the grantor, Wiley Albert, was executed to the said Moak in fee and without trust; that she was placed in possession and so remained until her death, confiding in her brother as her friend and adviser to protect her rights; that not long after the death of the said Bebecca, the plaintiffs, her children, who were then minors of tender years, were taken by the said Moak, their [584] uncle, to Lexington county, where they were brought up in ignorance of their rights as to the land, until within less than four years before the commencement of their action; that at the death of their mother the land was taken possession of by Moak; that defendant is now wrongfully in possession and has been for four years; that defendant Page wrongfully claims an interest therein; that the rents and profits are reasonably worth $100 per annum. Wherefore they prayed judgment, that defendants, Henry Moak and Andrew Moak, execute titles to plaintiffs; that plaintiffs be let into immediate possession, and that defendant True pay to the plaintiffs four hundred dollars for the use and occupation thereof, and for costs. The Moak defendants, who are the heirs-at-law of Laban W. Moak, made default. But the defendants True and Page, answered, denying that Rebecca Copeland “ ever had legal seizin of the premises or any right -to the possession thereof;” that defendant True entered under claim of title in fee, founding this claim upon a written instrument, to wit, a deed from one Wiley Albert, executed on November 3d, 1849; that there had been a “ continued occupation and possession of said' premises under this claim for more than twenty years last before this action, by the defendants and those under whom they claimed; that they deny the truth of each and every allegation inconsistent with what is herein stated.” At the hearing, the complaint was dismissed as to Page, upon affidavits that he had no interest in the land and that he had answered by mistake. The cause was referred to a referee, and a jury was empaneled to aid the court in reaching a conclusion. It does not appear in the brief what verdict the jury rendered. But the presiding judge found as matter of fact that the evidence going to show the resulting trust under which the plaintiffs claimed was not satisfactory, and even if the trust were established, that the plaintiffs had failed to bring notice thereof home to the defendants, which, he held as a matter of law, devolved upon them. On these grounds he dismissed the complaint. The appeal questions the correctness of this ruling: First, as to the finding of fact by the judge, that the resulting trust had not been established; and, second, as to the proposition [585] of law, that it devolved upon the plaintiff to bring home to the defendants notice of such.trust, if it existed. The complaint states fully the facts out of which the plaintiffs claim that the trust originated. If these facts, thus alleged in the complaint, had been denied in the answer, thus raising a direct issue as to their truth, and testimony had been admitted upon such issue, then the finding of fact by the judge would hardly be disturbed, certainly not under the decisions of this State so often cited, unless it was cleai'ly and patently against the evidence. But the allegations in the complaint, which, if true, assuredly raised a trust as between the original parties in favor of Mrs. Copeland, were not denied in the answer. The answer simply claimed title in the defendants, even that not very clearly, and denied as a legal conclusion that Mrs. Copeland ever had legal seizin or any right to possession. This, if true, did not controvert the positive allegations in the complaint of the facts, herein above stated, and which gave rise to the trust. The defendants, then, not having denied these allegations, either generally or specially, they stood as admitted, (Code § 191,) and being admitted, the trust was established as against the defendants. The error of the judge was not in his finding of fact as to the existence of the trust, upon the testimony before him, but in regarding that as an open question, under the pleadings as they then stood, and requiring further testimony thereto besides the admissions of defendants in their answer. Mr. Pomeroy, section 617, in treating of failure to deny in the answer the allegations of the complaint, says : “ Such allegations áre admitted to be true, and the plaintiff need not prove any material allegation so conceded to be true. Evidence in contradiction of them cannot be received, and a finding of fact in opposition to such admissions will be disregarded and set aside on appeal.” 2. Lid the judge err in holding that it devolved upon the plaintiffs to prove that the defendants had notice of the trust? It is always necessary for a plaintiff to make out his case, and when the facts alleged by him are denied, he must prove them to the satisfaction of the jury, or the court, as the case may be. Here plaintiffs’ cause of action consisted in defendants depriving them of the benefit of a certain tract of land, to which they [586] claimed they were entitled by virtue of a resulting trust in favor of their mother. The essential facts in this cause of action, at least until the defense appeared, were, first, the existence of the trust, and, second, the deprivation of possession. These facts the plaintiffs proved; what else, before defense, could they be required to prove ? They could not be expected to anticipate the defendants’ ground of defense and to attempt to destroy it in advance. It was time enough for them to do this when such defense was interposed. The defense of bona fide purchase without notice is in many cases a good defense, but it is not one which the law raises and presumes to exist, like the presumption of innocence in criminal cases. On the contrary, it must be presented and made out by the party who attempts to shield himself with it. In this case this defense is not set up in the answer, and under the pleadings it is doubtful whether the defendants could have legally introduced evidence to sustain it, even if they had desired to do so, much less that the plaintiffs should have been required to anticipate it and to meet it. Defenses are of two classes: first, denials of plaintiff’s allegations, either general or special, and thereby raising a direct issue as to their truth ; and, ■second, the interposition of what is called “ new matter,” that is, the averment of facts different from those alleged in the complaint, and not embraced within the judicial inquiry into their truth. This latter class being also divided into two classes, to wit, those which are defensive, and which, if true, bars the plaintiff’s right of action, (Pomeroy § 593,) and those which set up an independent cause of action in favor of the defendant, as counterclaim, &c. Both of the original classes may be set up in the same answer; when so done, However, they should not be mixed together, but should appear in separate and distinct paragraphs. "When the defendant relies in his answer upon but one of these defenses, for example, a denial, then, as a general rule, his testimony must be confined to the issue raised by such defense. Pomeroy §§ 690-91. In fact, the tendency of the decisions in most of the States where the code has been adopted, is to a rigid and universal [587] application of this rule. How far this principle shall be applied in this State it is not now necessary to determine, but we will say that the rule is logical in its character, and, if closely adhered to, would be highly beneficial. But where denial is not relied upon, on the contrary the defendant stands upon “ new matter,” admitting the allegations of the complaint, he must aver his new matter in his answer, otherwise it is not properly in the case, and no testimony in reference to it will be admitted. Pomeroy § 706. Here the defendants admitted the plaintiffs’ cause of action, but failed to set up the new matter upon which the case turned, to wit, “Innocent purchaser without notice,” and yet the plaintiffs’ action was dismissed because he did not rebut this defense in advance of its being presented, or any prima facie showing made of its truth. The defense of bona fide purchase without notice is an equitable defense, must be set out in' the answer, and must be sustained by the party who erects it as a shield. Frost v. Beekman, 1 Johns. Ch. 288; 2 Abb. For. 167, note; 2 Lead. Gas. Eq. (Hare & W.) 119-120; White & T. Lead. Gas. 102. We think the Circuit judge erred in his rulings, both as to the fact of the existence of the trust, and as to the legal necessity of plaintiff’s proving that defendants had notice thereof. We think that the complaint was properly dismissed as to the defendant Page, upon the showing made. The other exceptions raise no question requiring the opinion of this court. The judgment of this court is that the order of the Circuit Court dismissing the complaint be reversed, and that the case be remanded for a new trial. McIver and McGowan, A. J.’s, concurred.