Opinion
07-14-1903
BOARD OF HOME MISSIONS et al. v. DAVIS.
George M. Shipman, for the motions. Martin Wyckoff, opposed.
Suit by the Board of Home Missions and others against William Davis. Motions to strike defendant's answer and for reference. Motions denied.
George M. Shipman, for the motions.
Martin Wyckoff, opposed.
MAGIE, Ch. On behalf of complainants two motions are made, which require separate consideration.
The first motion is for an order striking out the answer of defendants. It is made under the provisions of rule 213. Such a motion takes the place of exceptions to the answer. Hanneman v. Richter, 63 N. J. Eq. 755, 53 Atl. 177. A previous motion of identical character was made and denied. A denial of such a motion is the exact equivalent of an order overruling exceptions. Exceptions to an answer must specify the grounds of objection. A motion which takes the place of exceptions is subject to the same rule. A defective statement of the grounds of objection might, perhaps, be amended on application. If no amendment is made, and the exceptions are overruled, no further exceptions can be interposed. A like rule must apply to a motion taking the place of exceptions. The previous motion was denied because of defective statement of objections. As exceptions could not now be interposed, a new motion of the same kind cannot be made. This motion must be denied, with costs.
The second motion is for a reference to a master under rule 29. The bill seeks the foreclosure of a mortgage, and complainants' claim is that the answer of defendant does not appear to set up any defense, or to present any question except such as may be properly referred to a master, and therefore, under the rule cited, a reference may be made. The pleading filed by defendant consisted of the answer not under consideration, and what was claimed to be a cross-bill, whereby defendant stated that he reiterated the facts set forth in the answer as to the manner and circumstances under which he was induced to execute the mortgage in question, and thereon prayed a decree for the surrender of the bond and mortgage to him for cancellation. Complainants previously moved to strike out the cross-bill under rule 213. This motion took the place of a demurrer, and required me to determine whether, upon the facts stated, defendant had disclosed an equity entitling him to the relief sought—of surrender and cancellation. My examination led me to the conclusion that a demurrer to the cross-bill would have been sustained, and the motion in place of the demurrer was therefore granted, and the cross-bill was struck out. Complainants now claim that such action requires me to now hold that the answer of defendant presents no defense. But this is an unwarrantable deduction, arising from a misconception of the defendant's position as disclosed by his pleading. The bill charged that the bond secured by the mortgage sought to be foreclosed was given for the purchase money of a conveyance of the mortgaged premises from complainants to defendant, and that the mortgage was executed by defendant, and contained an express averment that it was given for such purchase money. The answer of defendant admitted his execution and delivery of the bond and the mortgage having such an averment therein, but was plainly intended to set up two equitable defenses, viz.: (1) The total failure of consideration for the bond and mortgage, because the conveyance of the mortgaged premises from complainants to defendant was never delivered to defendant; and (2) because defendant was induced to execute and deliver the bond and mortgage by the fraud of complainants. The first of these was a pure defense against the claim of the bill; the second required to be asserted in and supported by a cross-bill. O'Brien v. Hulfish, 22 N. J. Eq. 471; Hile v. Davison, 20 N. J. Eq. 228; White v. Stretch, 22 N. J. Eq. 76; Kuhnen v. Parker, 56 N. J. Eq. 286, 38 Atl. 641. The latter of these positions was the only one requiring consideration upon the motion to strike out the cross-bill. Without going over the allegations in the pleading, it is sufficient to state that, if all of them were proved as alleged, no fraud on the part of complainants would be shown. In that conclusion, the defense of failure of consideration was not involved. The answer, in attempting to state that defense, is not felicitously expressed. Perhaps it might have been excepted to on the ground of insufficiency. But if such an exception had been made and allowed, defendant would have had the opportunity to file another answer setting up the facts with more certainty. But there is in the answer a plain assertion that the conveyance, to secure the purchase money for which the mortgage was conccdedly given, was never delivered to the defendant. Upon this motion, I do not think I ought to treat the answer as not presenting a defense, even if I find that it could have been excepted to as insufficiently stated. Where such an objection was not interposed when defendant could have cured the defect, if there was any, it ought not to be considered to induce a course of action which might deprive defendant of the defense he intended to present.
For these reasons, this motion will also be denied with costs.