Whitaker v. Middle States Loan, Building & Construction Co.

Mr. Justice Shepard delivered the opinion of the Court: 1. We have had occasion heretofore to condemn the practice of referring in the pleadings to the records of deeds and mortgages with a view to making them parts thereof, without annexing and filing copies as exhibits. Cammack v. Carpenter, 3 App. D. C. 219, 226. In that case it was said by the Chief Justice: “A mere reference to records or the registry of deeds, existing independently of the record of the particular cause, cannot be considered as bringing such records or deeds before the court and making them parts of the bill. The record of each case must be complete of itself.” Where deeds and conveyances form a part of the recitals of a case, or are mere matters of inducement, it will be sufficient to describe them substantially in the bill or answer ; but when this is not done, or the case turns, in whole or in part, upon the construction to be given to an instrument of writing, the original, or a copy, should be filed as an exhibit. The deeds in this case, however, are in the record, copies having been filed at the request of the court, and considered at the hearing. This, though done in an irregular way, was not objected to at the time, and, for the purposes of this appeal, must be regarded as substantially equivalent to an amendment of the bill in that regard. 2. The bill was not subject to demurrer on account of the relief sought. The mortgage was prepared in Maryland, and covered land lying partly in that State and partly [208] in the District of Columbia. By virtue óf a statute of Maryland, the mortgagee in a mortgage with power of sale can purchase at his own sale, and a simple method is provided for the making of title'. There is no such statute in this District, and the rule remains as it prevailed in Maryland before the enactment of her statute. Therefore, the court did not err in entertaining the bill, nor in holding the sale irregular, and that it was competent to appoint a trustee to execute the powers conferred on the mortgagee. 3. The chief point of appellant’s contention is that the case having been submitted “upon bill, answers, pleas and demurrers,” the complainant was not entitled to a decree because the facts alleged in the answers should have been considered as admitted and taken as true. The general rule is, of course, that upon such submission all matters of defence substantially alleged, must be taken as true. And where an answer is incomplete, or evasive, it may be excepted to for that reason, but it cannot be ignored or treated as an admission of the allegations of the bill. Young v. Grundy, 6 Cranch, 51 ; Brown v. Pierce, 7 Wall. 205, 211. Whilst not denying the general rule as to the ordinary effect of an answer, the appellee contends, that, as the bill is founded on an instrument under seal, the recitals of which, repeated in the bill, substantially declare that the lands are the separate estate of the said Laura S. Whitaker, and also that the same thing appears in the deeds referred to in the bill as conveying the title to her, she is therefore estopped to deny these facts by any character of answer or plea short of non est factum. It is further contended, also, that if the answer is to be regarded as a denial of the existence of a statutory separate estate in the wife, because the land is made to appear, in reality, as a gift from the husband, it nevertheless shows that it is her equitable separate estate, and subject, as such, to the lien of the mortgage, regarded as a contract that she had the right to make concerning it, or for its separate benefit. [209] It may be that, under all the facts and circumstances of the transaction, Laura S. Whitaker and her husband would be estopped to deny that the property described in the mortgage is her statutory separate estate; or that, failing this, the lien may, nevertheless, be enforced against it as her equitable separate estate. But we do not think it proper, much less necessary, to decide either of these questions upon the record before us. They are too important and serious in their consequences to be determined save upon the fullest consideration in the light of all the facts and circumstances of the transaction. It is quite evident that the bill was prepared upon the theory that the land was the separate estate of the wife, which, under the statute, she had the right to convey without a privy examination upon the acknowledgement of her signature, and with no special reference to her defences. The allegations are general that she held the property under certain described conveyances as her separate estate. And it is true that the legal effect of those conveyances, unexplained, was to constitute, the property her separate estate under the terms of the statute. The answers did not deny that these deeds were made and delivered to the wife, but did, in express terms, deny that their consideration was paid by the wife or with her money, and that they were intended to create a separate estate in her. They alleged further that the land was in fact derived through the husband, and had been conveyed to her in exchange for other lands belonging to him, which he had, at the same time, conveyed to her grantors. There are some other general allegations to the same effect. If these allegations be true, and the defendants are not estopped to make and rely upon them, a court of equity, looking to the substance of the transactions between defendants and the grantors of the wife, would be constrained to hold that those lands had not been “acquired during marriage in any other way than by gift or conveyance from her husband,” and did not, therefore, become her separate estate [210] within the terms of the statute. R. S. D. C, sec. 727. That which could not be done directly could not be accomplished, as between the parties, by indirection. Complainant stood to its bill, after the answers were filed, without amendment. We do not think that this bill comprehended an anticipation of the defences aforesaid, through the claim of estoppel now urged in support of. the decree. There are, it is true, some general allegations which tend to support the theory of the estoppel, but we cannot regard them as sufficient to present the issue in a manner proper for decision. With respect to the second point of the contention, there is still less ground for treating the question of the right to subject the property to the lien of the contract as being the wife’s equitable separate estate, as presented in a manner requiring determination. It is in conflict with the whole scheme of the bill, for it proceeds exclusively upon the idea that the land is the wife’s statutory or legal separate estate. There is no allegation warranting relief on this ground, and the question arises wholly, by way of inference, from the facts alleged in the answer in bar of the relief prayed in the bill. The decree ought therefore to be reversed, and the cause remanded for further proceedings wherein, through amendment of the pleadings, and through proof if necessary, the questions aforesaid may be fairly and fully presented for determination. 4. There is another question in the record which, though not material to the disposition of the case on this appeal, may become of some pi'actical importance should the final decree be in favor of the complainant, and we will briefly consider it. As has been heretofore remarked, a part of the mox'tgaged land lies in the State of Maxyland. What px'opoxlion its value bears to the remainder that lies in the District does not appear. The bill charges that in a sale made by complainant at public auction, on the premises, the whole ti'act was sold on a bid of $4,500, made by complainant. It does not appear whether the part lying in the [211] District was sold separately from that lying in Maryland ; presumably it was not. If the whole sale be avoided and held for naught, then there would be no occasion for a reference to the auditor to ascertain the amount and disposition of the proceeds arising from the sale of the Maryland portion. We have heretofore held that in a proceeding to foreclose, the court may, either on the hearing, or through reference to the auditor, ascertain the amount due. The reference to the auditor is a matter of discretion. Girard Life Ins. Co. v. Taylor, 1 App. D. C. 209, 217. If it should transpire that the Maryland part has been lawfully sold, then, necessarily, the net proceeds of such sale should be ascertained and credited before foreclosure upon the part in the District. If not so sold, then, on the other hand, complainant would be entitled to foreclosure for the whole amount of its debt, interest and costs, upon the land lying within the District. For the error pointed out above the decree rvill be reversed, with costs to the appellants, and the catise remanded' for further proceedings not inconsistent with this opinion.