Emig v. Baker

Mr. Justice Van Orsdel delivered the opinion of the Court: It is well within the jurisdiction of a court of equity, upon proper proof, to decree a bill of sale, though an absolute conveyance on its face, to be a chattel mortgage. That the bill of sale in this case was so intended is set forth in the bill, and conceded by the answer. Defendant does not specifically deny the giving of the notes, admits the $50 note, and admits an indebtedness of $500. These admissions are in answer to the averments of the bill that to secure this indebtedness the bill of sale was given as security. The averments which are neither admitted nor denied, and of which defendant demands “strict proof,” except as to the averment that the bill of sale was intended to operate as a chattel mortgage, are substantially admitted in the answer. This averment is a conclusion to be drawn from the facts disclosed by the bill, answer, and proof. The proof only t elated to identification of the bill of sale. This, with the uncontested facts disclosed in the pleadings, fully supports the decree. Defendant assigns error in that the court failed to give credit for the $150 set up in the answer as usury. No replication to this averment of the answer was filed, and defendant urges that the failure to reply was an admission of its truth and relieved him of adducing proof in support of it. In the absence of default being taken at the proper stage in the trial, the failure to reply is not such an admission of an affirmative defense as will dispense with proof. It was the duty of defendant, in default of a reply, — if, indeed, a reply was necessary, — to ask for a rule on plaintiffs requiring them to reply, or to false a default, or to offer proof in support of his affirmative defense. J. S. [310] Keator Lumber Co. v. Thompson, 144 U. S. 434, 36 L. ed. 495, 12 Sup. Ct. Rep. 669; 31 Cyc. 266. Not only was no proof offered by defendant in support of bis averments, but tbe failure to reply was not mentioned as a ground in tbe motion for dismissal when tbe taking of testimony was concluded. Tbe matter was not brought to tbe attention of tbe trial court, and it is too late to present tbe question initially on appeal. Tbe decree is affirmed, with costs. Affirmed. A motion for a rebearing was overruled January 22, 1916.