Opinion
05-31-1889
PACE v. BARTLES.
Martin Wyckoff, for complainant. J. N. Voorhees, for defendant.
(Syllabus by the Court.)
On exceptions to a master's report, upon exceptions to an answer for insufficiency.
Martin Wyckoff, for complainant. J. N. Voorhees, for defendant.
MCGILL, Ch. The complainant's bill alleges that Michael Pace died on the 1st of January, 1877, leaving a will by which he devised to his son George a farm of 187 acres, worth about $10,000, and then incumbered by a judgment for one thousand and some odd dollars which Elias M. Bartles had recovered in 1876 against both Michael and George Pace in the supreme court of this state, upon which executions had issued. The complainant, George Pace, was appointed executor of the will, and the defendant, Bartles, was a witness to it. A caveat against the probate of the will having been filed, the complainant arranged with Bartles that Barties, as his attorney in fact, should see to the probate of the will and the settlement of the father's estate, and should pay the expenses of so doing, and charge them to the complainant. Bartles pretended to befriend the complainant, who was an ignorant and intemperate man, and at the same time conceived the design of getting title to the farm and possession of it for a small and inadequate price. Probate of the will was secured in April, 1877, and in June of that year the defendant obtained from Pace and his wife a conveyance of the farm to himself, subject to his judgment. The deed recited that its object was to provide that when the property should be sold under the judgment any surplus moneys that might be realized at the sale should go to Bartles. Bartles represented to the complainant that the purpose of the deed was to deter outsiders from buying the farm at the sheriff's sale, and to enable him (Bartles) to buy it for the complainant. The real purpose of the deed, the bill charges, was to procure a release of the inchoate right of dower that Pace's wife had in the land. At the sheriff's sale the defendant prevented all bidding against him by representing to those who would otherwise have bid that he desired to buy the farm for Pace, and then he bought the property for $2,000. After the sale he induced Pace to make an agreement in writing, which his attorney had prepared, and which is set out at length in the bill, designed, as the complainant understood it, to convert Bartles' deeds for the farm into a mortgage to secure to him the payment of $3,211 within six months. Pace tried to borrow the money necessary to pay this amount, but was thwarted in his efforts to do so by Bartles, who represented to one who proposed to lend that the title to the farm was not perfect; and in 1879 he was induced to surrender possession of the farm to Bartles, who thereupon entered into possession of the land, and has remained in such possession hitherto. During that possession he has cut and sold valuable timber and bark from the farm, and has received the rents, issues, and profits of the land. The bill calls upon the defendant to account for the timber, bark, etc., sold, and for the rents, issues, and profits received, and prays that an account may be taken of the defendant's receipts from the farm, and that if, upon such accounting he shall be found to be indebted to the complainant, he may be decreed to pay the amount of such indebtedness, and, if the complainant shall be found to be indebted to the defendant, that he may be allowed to pay the amount due from him, which he tenders himself ready to do, and redeem the property, or, in default of such payment, that the farm may be sold, and the defendant paid out of the proceeds of the sale. To this bill the defendant answers, denying that the farm was not of the value alleged in the bill, or, indeed, much in excess of the amount due to the defendant, and denying that he designed to impose upon or oppress the complainant, or did in the manner alleged or in any other way oppress or take advantage of him, or hinder or thwart him in his efforts to borrow money; and denying that the agreement set out in the bill was designed to convert deeds to the defendant into a mortgage, or was so understood, or that such is its legal effect. It is claimed that the agreement is what the defendant insists it appears plainly upon its face to be,a contract for the repurchase of the farm within six months. The answer alleged that this time for repurchase was subsequently extended by the defendant until the complainant gave up all hope of repurchasing the farm and surrendered the possession of it, which, from the sheriff's sale, he held as tenant of the defendant under written leases. It further alleges that the complainant for 10 years has acquiesced in the defendant's claim of absolute title to the farm, and has stood by and witnessed him making extensive and necessary improvements to it, and has delayed the commencement of his suit until after the death of the defendant's attorney, and the loss of his evidence in the case. The answer dots not give the account that the bill asks. Because of this failure to set out an account of the rent, issues, and profits of the farm, and of the timber, bark, etc., cut and sold from it, the complainant excepted to the answer. Upon considering the exceptions, the master reported that they were not well taken, because the defendant should not be required to spread such an account upon the record until the court had passed upon the complainant's right to redeem and have the account.
The question now presented by exceptions to the master's report is one which has given rise to much contrariety of opinion among judges. Upon the one hand it has been argued that a defendant may refuse to give an account in his answer to a bill for account, when he denies the facts upon which complainant's right to an account is based or sets up an affirmative defense, because it is uncertain whether the complainant will establish his right to an account, and in such uncertainty the complainant should not be subjected to that which may be a heavy burden, or the complainant's asserted right may be a mere pretense to draw an account by answer to which the complainant has not in reality the slightest shadow of right, and the de-defendant should not, until the right is determined, be put to an unjust, and may be hurtful, expense. It is enough for the complainant's purposes that the account may be had in the master's office after the right to it shall be determined. Upon the other hand, it has been contended that the defendant can protect himself from giving an account by plea or demurrer, but when he submits to answer he must answer fully, giving the required account, for by so doing a balance may be shown in favor of the complainant that he may be willing to accept at the hearing in expiation of his suit, and that will appear which may be useful upon numerous motions in the suit, and discovery may be had which in case of delay might be lost by the defendant's death. It is unnecessary to state the numerous cases upon this vexed question. They have been admirably reviewed by Chancellor KENT in Phillips v. Prevost, 4 Johns. Ch. 205, (1819,) and by Chancellor COOPER in French v. Rainey, 2 Tenn. Ch. 640, (1876.) In the former of these cases, Chancellor KENT held where a bill was filed by executors of a creditor claiming under a judgment of more than 36 years' standing against the legal representatives of the debtor, above 30 years after his death, without accounting for the delay, or showing any attempt to recover the debt at law, and seeking a discovery and account of assets, that the defendants, after admitting the death of the original parties to the demand, and the representative of the plaintiffs and defendants, might object to making any disclosure of assets on the ground of the staleness of the demand and the great lapse of time. The chancellor's view was that it must depend upon the reason and convenience of the case whether the general rule that, when a defendant submits to answer he must answer fully, will be enforced; that that rule, though it may be termed general, is not inflexible. The conclusion reached by Chancellor COOPER in French v. Rainey was that, where the objection to discovery is founded upon a denial of the complainant's right of suit, the defendant is entitled by answer to protect himself from the discovery consequential to the relief sought, but not from the discovery which will aid the complainant in obtaining that relief. Judge Story, in his work on Equity Pleadings, § 8526, says: "But where the defendant sets up a title in himself, apparently good, and which the plaintiff must remove to found his own title, the defendant is not generally compelled to make any discovery not material to the trial of the question of title." I am unable to find that the question presented in this case has ever been discussed in this state, bearing upon the procedure upon bills for account. Chancellor GREEN, in Hudson v. Manufacturing Co., 16 N, J. Eq. 475, decided that upon a bill for an account the ordinary decree is that an account shall be taken, and that the only material evidence upon the original hearing is that which conduces to prove the complainant's right to an account, and that evidence as to the particular items of the account is irrelevant at this stage of the case. This case seems to be the nearest approach, in this state, to the principle underlying the questions now before me. I think that, upon principle, where a bill is filed for an account, and the account does not appear by the allegations and charges of the bill to be useful in establishing the complainant's right to it, but appears merely as that which must ultimately be rendered in fulfillment of an obligation, the enforcement of which is sought, the defendant need not set out the account in his answer, if it is necessary to resort to answer, rather than to plea or demurrer, in resisting the complainant's alleged right to the account; but if the title may be resisted by plea or demurrer, and the defendant, instead of availing himself of those pleadings, chooses to answer, he must do so fully and without reserve, setting out the account, for his submission to answer in such case is voluntary.The demurrer and plea both admit the facts stated in the bill. The demurrer denies that they make a case against the defendant, and the plea avoids their force by presentation of matter in avoidance of the case made by them. When those facts tend to establish a case of fraud charged in the bill, as they do in the case in hand, it may become necessary to deny them in order to give efficacy to an affirmative defense that otherwise might have been set up by plea, or that, in absence of them might have been made by demurrer. In such a case answer must of necessity be resorted to. I conceive the case before me to be of this kind. The alleged contrivances of the defendant, Barties, to deprive Pace of his farm, have such an important bearing upon the case that their denial is necessary to a perfect defense. It was, then, necessary that the defendant should answer. It is manifest that the account demanded cannot be useful in establishing the complainant's right to the relief he asks, and that, when rendered, it must cover the minute details of farming operations for a period of 10 or more years. After the right of the complainant to have the account shall be determined, the account can readily be had in the master's office. I do not think that it will subserve either justice or convenience to require that this account shall be set out in the answer, and I will therefore overrule the exceptions, but, because of the conflict among the authorities, without costs.