Opinion
07-24-1912
BENDER v. DIALOGUE.
Lewis Starr, for complainant. French & Richards, for defendant.
Bill by Adelaide Bender against John H. Dialogue, Jr., individually and as administrator, to set aside a release and for discovery. Heard on argument of sufficiency of defendant's pleas. Pleas overruled.
Lewis Starr, for complainant.
French & Richards, for defendant.
LEAMING, V. C. The present hearing is to determine the sufficiency of two pleas which have been filed by defendant to complainant's bill.
The two pleas are filed to the same part of the bill, without leave of court, for that purpose. The established rules controlling pleas in equity not only forbid that practice, but require notice to an adversary before an order permitting two pleas to be filed to the same part of a bill will be made. See 1 Daniell's Chan. Pl. & Pr. (6th Ed.) *607 to 617, and notes. But, as no objection has been made to the pleas on the grounds stated, it may be proper to here disregard that irregularity.
The amended bill seeks to set aside a deed and bill of sale, wherein and whereby complainant, for a consideration agreed upon, released to her brother her share of her father's estate. The sole ground upon which relief is sought is fraud practiced by defendant in the procurement of the release. No recovery is claimed or can be had under the amended bill as framed, unless fraud, either actual or constructive, is established. By the averments of the amended bill, it is asserted that the fraud was not discovered by complainant until shortly before the bill was filed, and that the failure of its earlier discovery was by reason of confidence reposed in defendant as a brother, and his fraudulent representations and concealment of the truth touching the estate, which estate was being administered by defendant at the time the release was made, and the extent and value of which were alone known by defendant. The pleas are by their terms "pleas to the whole of the said amended bill, except so much thereof as charges this defendant with fraud." The accompanying answer is, by its terms, an answer to "so much of said amended bill as charges this defendant with fraud." One plea states by way of bar that complainant has allowed nine years to transpire without complaint, and defendant has, in consequence, assumed risks and indebtedness of the ancestor's estate, and cannot now furnish "much of the information sought in said bill." The other plea states by way of bar that the conveyance was made by complainant to defendant at a time when the estate was unsettled and heavily incumbered and largely involved in litigation and its value uncertain, and that complainant made said sale and conveyance, after full deliberation, more than nine years before said bill was filed for a consideration believed by defendant at the time to be adequate. The answer is to only so much of the bill as charges fraud and denies fraud generally.
It will be observed that the pleas do not deny the fraud charged by the bill, and are, by their terms, filed only to that part of the bill which does not charge fraud, and sets forth the affirmative matter already referred to in bar. In testing the sufficiency of a plea, all material averments of the bill which are not denied by the plea must be assumed to be true. 16 Cyc. 295. As these pleas do not deny the fraud charged by the bill, and do not deny its recent discovery, or the statements of the bill touching the reason for the failure of complainant to earlier discover the fraud, these averments of the bill must, for present purposes, be deemed admitted. Under such admissions, the affirmative matters set forth in the plea by way of avoidance manifestly afford no bar to the bill.
The theory of counsel in filing the pleas appears to have been that the general denial of fraud in the answer can be utilized in support of the pleas at the argument touching their sufficiency. Upon that theory it is now urged that the affirmative matter set forth in the pleas affords a bar to recovery, in the absence of fraud. It is entirely clear, however, that at a hearing touching the sufficiency of a plea to a bill charging fraud the denial of fraud contained in an answer which may be filed in support of the plea cannot be considered as forming a part of, or in any way aiding, a plea which does not deny the fraud, and especially one which expressly states that it is not filed to that part of the bill which charges fraud. If defendant seeks, by means of a plea, to sustain the legal bar afforded by the release which complainant has executed, that can only he accomplished by a plea framed in accordance with the rules which have been long established and uniformly recognized in cases of that nature. These rules may be briefly stated as follows: When a bill sets up a decree, release, award, or other matter which would be operative as a legal bar to the relief or discovery sought, and seeks to set aside or avoid the effect of such decree, release, or other bar by averments of fraud in its procurement, or other matters in avoidance of the bar, a plea which seeks to sustain the decree, release, or other bar must affirmatively set forth such decree, release, or other bar so referred to in the bill, and also deny the truth of that part of the bill which would, if true, be operative to avoid the legal bar. Such pleas are commonly classed as anomalous pleas, and must, as a rule, where fraud is charged and discovery is sought, be accompanied by an answer in their support, specifically answering such averments of the bill as impute fraud, and making such discovery as the bill may require. Such an answer forms no part of the defense, but is a discovery of that evidence which the complainant has a right to require, as complainant is privileged to use such answer as evidence at the argument of the sufficiency of the plea, and also at a hearing to determine the truth of the plea. The extent to which a prayer in the bill for an answer, not under oath, may be operative to excuse a discovery is a matter which need not be here considered. See Story's Eq. Pl.
(10th Ed.) §§ 671, 685, and notes; Id. §§ 796-803; 16 Cyc. 291.
As already stated, the pleas here in question are filed to only that part of the bill which does not charge fraud. While a plea in equity may be properly filed to a part of a bill, it can only be filed to a substantive part. All of the adjudicated cases necessarily proceed upon that assumption; for a plea can afford no bar to any part of the recovery sought, unless it tenders a material issue. Story's Eq. Pl. (10th Ed.) § 661. The rule, as stated in 16 Enc. Pl. & Pr. p. 604, is: "If an issue raised by a plea in equity is not a material one, the plea will be overruled." The pleas here in question disclaim a purpose to answer any part of the bill which imputes fraud to defendant, and pleads in bar matters which cannot be regarded as material, with all of the averments of the bill touching fraud accepted as true.
I will advise an order overruling the pleas.