The second assignment is not well taken, because the complaint avers that Everett, Head and Dean were the owners and successors in interest of Cooper.

         The answer does not deny this fact. The evidence admitted was therefore unnecessary to establish the right.

         2. The third assignment is not well taken, because the deed was the last evidence of the transfer of the right of Everett, Head and Dean to the plaintiffs.

3. The third, fourth, and fifth assignments are not well taken, because

         1. No such defense is set up or relied on in the answer.

         2. The subject matter is res inter alios acta .

         3. The defense does not set up the rights of the third parties, nor pretend to claim under them.

         4. The defense does not admit the rights of these third parties.

         There is no denial in the answer of the conveyance from Cooper to Everett et al. The only denial is of the sale and transfer to the plaintiffs. That denial is insufficient. The answer says: " From want of information to enable them to admit." They might have knowledge of thefact from being present, and seeing the deed signed, and yet the answer would be true. So the answer is only inferential.

         How much information would enable them to admit? They are left to be the judges of that, for they failed to state that they have no information on that subject.

         JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C.J., concurring.

         OPINION

          BURNETT, Judge

         This was an action to recover damages for the diversion of water from the ditch of plaintiffs, and to enjoin defendants from continuing the nuisance. The plaintiffs had judgment in the Court below, and the defendants appealed.

         1. The first error assigned by defendants is, that the Court below erred in overruling defendants' motion for a nonsuit. This objection we think not well taken. The evidence was sufficient to go to a jury.

         2. The second error assigned is, that the Court erred in permitting parol evidence of the contents of the deed from Cooper to plaintiffs' immediate grantors, without accounting for the non-production of the instrument. In answer to this objection, the counsel of plaintiffs insist that the fact was not denied in the answer. The complaint and answer were both verified. In the complaint it was alleged that Thomas Cooper and others constructed the ditch, and that " on the 10th day of October, 1855, and for a long time previous thereto, Charles H. Everett, John A. Head, and James M. Dean, were the owners and successors in interest of the said Thomas Cooper and others of, in, and to the said Georgia Ditch." This allegation of the complaint is met by the defendants, in their answer, by this denial: " And the said defendants deny, for want of information to enable them to admit, the sale and transfer of said Georgia Ditch to them, the said plaintiffs, as alleged in their said complaint."

         In case the complaint be verified, the answer must contain a specific denial to each allegation of the complaint, controverted by the defendant, or a denial thereof, according to his information and belief; and every allegation not so denied, shall, for the purpose of the action, be taken as true. (Secs. 46 and 65.)

         The only consequence resulting from the failure of defendants to properly deny a particular allegation of the complaint, is, that the allegation shall be taken as true. No motion to set aside the answer is required; but it is held simply void, and raises no issue.

         When the alleged fact is, from its nature, presumptively within the personal knowledge of the defendant, he cannot be permitted to answer upon information and belief, but must answer in the form positive. And where, from the nature of the fact alleged, the knowledge, if any, of the defendant, is presumptively based upon information, he is not bound to deny, positively, but only " according to his information and belief." In this case, the transfer from Cooper was the act of a third party; and unless it had been expressly alleged in the complaint that defendants knew that fact of their own knowledge, they could only be required to answer according to information and belief. But the defendant, in such case, must answer according to both his information and belief. The answer in this case says nothing about the belief of the defendants. It does not deny that defendants had any information, but simply avers a want of information to enable them to admit, not believe, the alleged fact. The object of the statute is to sift the conscience of the defendant, and obtain from him his belief. He must answer according to his belief, whether that belief be founded upon sufficient or insufficient information. The word " belief," as used in the statute, is to be taken in its ordinary sense, and means the actual conclusion of the defendant, drawn from information. There is a clear distinction between positive knowledge and mere belief, and they cannot both exist together.

         The defendant can know what is his belief, and can, therefore, state it. This belief may be founded upon the statements of others, not competent witnesses, and not under oath, and not, therefore, legal testimony, to prove the fact in Court, if denied. Yet, if the defendant has formed a belief of the fact from this incompetent testimony, he must state it. In making out his answer, he cannot undertake to decide whether the information upon which his belief is founded was legal testimony or otherwise. He must state facts only, and the fact of his belief is the only matter known to him. If permitted to judge as to the legal competency of the information upon which his actual belief is founded, then the object of the statute, in requiring him to answer according to his belief, would be defeated.

         The only object in requiring the defendant to state his belief, is to dispense with the necessity of proof, on the part of the plaintiff. If, then, he admits that he believes the fact to be true, the fact stands as confessed. The clear result of this provision of our statute is conceived to be this: that the defendant must state his actual belief, whether founded upon mere hearsay evidence, general report, or other information; and when he does so state it, he is precluded from controverting the alleged fact which he believes, but does not know to exist. The practical result is, that the plaintiff may establish the existence of a fact, not known to the defendant, by the defendant's mere belief, based upon incompetent evidence. The statute changes the law of evidence in favor of the plaintiff, and against the defendant. It permits the plaintiff to verify his complaint; and then the defendant is compelled to state his belief, as to facts he does not know to exist. And when those facts (unknown to the defendant) are alleged and sworn to by the plaintiff, upon his own knowledge, the defendant is compelled either to believe them to be true, or to believe the plaintiff guilty of perjury.

         Under the construction we are compelled to give the statute, to make it practically operative, the answer contained no proper denial of the alleged fact. The rule is a hard one, but the remedy must be sought elsewhere. While the defendant is compelled to answer every material allegation in the complaint, the plaintiff is not required to answer new matter, set up by the defendant, but the same is deemed controverted, without any denial. But we must administer the law as we find it. This provision of our Practice Act would seem to be a fruitful source of moral, if not of legal perjury.

         3. The third assignment of error depended upon the second, and is already disposed of.

         4. The fourth, fifth, and sixth assignments of error, are substantially the same, and may be all considered together. The defendants offered to prove that there was an older and better right to the water, in Spencer and Benson, and that they had brought a suit against defendants, for the diversion of the same water. This proof was refused by the Court, and the defendants excepted.

         This defense was not affirmatively set up in the answer. The plaintiffs, under the issues made by the pleadings, were only bound to establish a better right than the defendants. This they did, by proving a prior appropriation of the water by them. The simple denial, by the defendants, of all right in the plaintiffs, only put in issue the right of the plaintiffs to recover as against the defendants. The defendants, being in the actual possession and use of the water, had a good prima facie right to it; but when the plaintiffs proved a prior possession and use, they overcame this prima facie case of defendants. The prima facie case made out by the plaintiffs was of exactly the same character as that of the defendants, but it was prior, in point of time, and, therefore, as to it, superior. If, then, the defendants wished to overcome the prima facie case of plaintiffs, by showing that they were not trespassers upon them, but upon an older and better right, if trespassers at all, they should have specially set up such matter, and made Spencer and Benson parties to the suit, by filing an answer in the nature of a cross-bill. A trespasser should not be held liable to pay the damages he has occasioned, except to the party rightfully entitled to them. But, if he wishes to avoid a double responsibility as to the damages, he must bring the proper parties before the Court. It may be that the holder of the true title may not wish to assert his right; and if he should not wish to assert his title, the defendant has no right to assert it for him. The failure to assert the paramount title must enure to the benefit of him who holds the oldest prima facie title. If any one acquires a title by adverse possession, it must be the party having the prior actual possession. The party having the prior actual possession is always entitled to recover the possession of the premises from the second possessor, when both claim only by possession, and the suit is only between the two parties.

         Other points were alluded to in the oral argument before the Court, but cannot be noticed, because not stated among the points on file.

         Judgment affirmed.