U'CLOSKEY t1. BARB.
nal bill and complainant in the cross-bill is a creditor of Adam Remer, and has proceeded by attachment, as he lawfully might under the laws of the state of Iowa, against Adam, to levy upon said land' under his writ of attachment and to obtain judgment against Adam, and that said land was duly sold in pursuance of the decree and judgment of the court to satisfy the indebtedness due from Adam to the defendant; and that he has by due course of said proceedings obtained a deed. from the sheriff of said county conveying to him said land; and that complainant had notice, before purchasing from said Janet, of the fraudulent nature of the conveyance to her, and the manner in which she held her title; the cross-bill prays a decree that the title held by Janet, and which has been conveyed to complainant, was fraudulent as against the complainant, a creditor of Adam Remer, and that said complainant be decreed to vey said land to the defendant. The only question in the case, it seems to me, which is raised by these exceptions and demurrer. is whether this cross-bill is germane to the subject-matter of the original bill. Under the laws of Iowa any interest of a person in real estate in that state, whether legal or equitable, may be levied upon and sold by a creditor 6f the person holding such interest; and real estate fraudulently conveyed to a third person may be attached by a creditor of the real owner, and a bill filed afterwards to set aside the fraudulent title. Lathrop v. Brown, 23 Iowa, 40; Hultz v. ZoUars, 39 Iowa, 591; Gardner v. Jaques, 42 Iowa, 577; Bailey v. McGregor, 46 Iowa, 667. The complainant having come into a court of equity for relief, the defendant may. as it seems to me, appropriately make this application for relief by attacking complainant's title, and saying that complainant has inequity no title to the land in question, but that the real and equitable title is in the defendant; that the complainant has no standing in a court of equity to maintain and be protected in a title held in fraud of the defendant's rights. The case made by the cross-bill seems to me an appropriate defense to the complainant's case, and one that, if sustained QY the proof, would show the defendant titled to the relief asked. It therefore appears to me that the cross-bill is entirely germane to the ease made by the orig;inal bill, and that the exceptions to the answer, and the demurrer to the cross-bill, should be overruled.
d al. t1. BARR d al.
S. D. Ohio, W. D. March 9, 1889.
EQUITY-PLEADING-SEPARATE PLEAS-FILING WITHOUT LEAVE.
It is not usual, nor in conformity with proper practice. for a defendant. without previous special leave of court, to file several separate pleas, or to present several distinct and independent defenses in one plea; the object of a plea being to reduce the cause, or some distinct part of it. to a single issue. The rules of equity pleading require that the averments of a plea in bar shall be so clear; positive, and distinct as to render the plea a complete equitable and legal bar, and enable the complainant to take issue upon its validity.
the act of the in setting down a plea for instead of replying, to it, operates as an admission of the facts alleged, yet, in deciding upon the validity of the plea, the bill, , whicb 'are well sO'far it remains uncontradicted,is assumed to be tiue. · '
scribed in the bill, without statin,g any facts from which the court can see , whether defendant is the owner in fee or not, is bad.. 6.
VERMENTS OF TITLE.
,A. "that at the time :of the bringing of this suit, and long prior thereto, . this defendant was, and still is, in the open, notorious, cqntinuous, and ex, clusive possession of the said premises as the sole owner thereof, and claimingand, holdlng adversely to the complainants and the whole world, " is bad, in that, it consists of conclusiolj.s of law.
. A plea of the statute of limitations to a bill for partition. which does not negative the fact alleged in the bill that certain of the complainants were un· der disability when their rights of possession accrued, and have so continned, is bad.
OF LIMITATIONS. . ..
'A. plea that "comp!ltinants were at the time of bringing this suit, and
SAME""":'OUSTER AND Pr.sSEISIN.
SAME-MATTERS FOR DEMURRER.
A plea which presents matters proper for demurrer-as multifariousnessw;ll be'overruled. ' .
In Equity. Bill for partition and accounting, filed by Sarah E. McCloskey and others against Samuel Barr and others. On hearing as to sufficiency of pleas. .C. W. Cowan, H. T. FWlJ, and Howard Ferris, for complainants. , Lincoln, Stephans <fc Bateman, Harper, Ooppock <fc Hammel, Henry Van Mater, Simr.all &: Mack, and E. P. Bradstreet, for defendants. JACKSON, J.' This cause is now before the court on the sufficiency of the pleas filed 'herein by Ed. A. Foy, William A. Blanchard, Henry Van Mater, and others, defendants, adopting the same, and agreeing to be bound by the action oithe court thereon, to the second amended bill, filed by complainants November 7. 1888. The case made and presented by said second amended bill is briefly this: The complainants allege that they, together with certain of the defendants other than those interposing said pleas, were the legal heirs of Mary Jane Barr, who was seised in fee in remainder of the 1604-10 acres of land described in the pleadings, subject to the life-estate therein of one Maria Bigelow; that their said ancestor, the tenarifin fee irireulainder, departed this life intestate November 21, 1821, when said estate in remainder descended and became vested iil them and the other ,heirs and descendants of s.aid Mary as tenants in common; that the Jane Barr(m.ade parties life-tenant, Maria Bigelow, died August' 3, 1860, when their right of possession and that of their. co-tenants accrued, and that at the date of tpe accrual ,of, right· of possession upon the. termination of said lifeestate several pf the complainants, specially named j were under the
M'Cr.-OSKEY V. BARR.
ability of coverture andintimcy. The bill seeks special discovery of the defendants, whether all of them , other than the Barr heirs and descendants, do not derive such title and possession as they respectively have through and under the Maria Bigelow, together with the dates at which they acquired such title and possession, and also for partition, and an account for rents. The above-named defendants file pleas in bar of the suit, joining therewith. answers in support of the pleas. The pleas recite that they are filed by leave of the court first had and obtained, but there is no order of record granting such leave. The pleas of several defendants are substantially the same, and allege: "(1) That at the time of the bringing of this suit. and long prior thereto, this defendant was, and still is, the sole owner in fee-simple of the entire title of the follOWing described premises. viz.· (then settingollt certain lots or parcels of land in Cincinnati.) (2) That at the time of the bringing. of this suit, and long prior t.hereto, this defendant was, and still is, in the open, notorious. continuous, and exclusive possession of the said premises as the sole owner thereof, and claiminK and holding adversely to the compla.inants and all the world. (3) He further says that the said complainants were, at the time of the bringing of this suit and long prior therE-to. ousted and disseised and out of possession of said premises, and he says that complainants seek, Oy· their second amended bill, to recover the possession of a portion of the said land, and to establish their title therein; Wherefore he says that the relief sought by the said complainants' second amended bill is not of equitable cognizance, and that they have adequate remedy at law to' recover possession. and 'establish their title, if any they have. (4) And this defendant further for plea saith that he is the sole owner and holder of the premises described in his first plea above. reference to which is hereby made part hereof; that said second amended bUlls exhibited against this defendant and some two huodred otber defendants in possession of distinct tracts or parcels of land included within the tract described in the second amended bill; that this defendant lIas no interest or claim to tracts held and owned by the other defendants, and the said other defendants have no claim to or interest in the tract held by this defendant described in the first plea aforesaid; and this defendant says that iibis case is mixed up and joined with the case of the defendants in possession he will be put to large expense, and great vexation and delay. by reason of tp/t contention between the said complainants and the ot4er defemJants in posse&sion. in which he has no interest. and from which he can derive no benefit. Wherefore he saUh that the second amended bill is exhibited against bim and the said otherdefendants for several distinct and independent matters and causes, which have no relation to each other. and in .which he is in' no way interested and concerned, and ought not to be implicated." Then,without "waiving his said plea," the defendant proceeds to answer so much of complainants' said amended bill as he deems material to make answer unto, and denies that complainants are seised in fee and entitled to the possession of an undivided one-fifth part rOr of any part of the real estate described in said amended bill or in the first plea; denies the defendant Barr heirs or descendants are seised in fee of an undivided one thirty-fifth part or any part of the real estate described in said amended bill or in the ·firpt plea of defendant; denies that the unknown heirs of Margaret Hattersley are seised in· fee of an undivided one thirty-fifth part or of any part of the real estate described in the amended bill or in his first plea. The same denial is made as to
FEDERAL. REPORTER,. vol.
other named defendants alleged in the bill to have an undivided one thirty-fifth part of the land described in said bill. He further denies that all of the defendants other than those specifically named above are seised in fee-simple of the 25-35 part or of any part of the ll\.nds described in the bill or in his first plea, jointly, or in common, or m any way together; but avers that each of the said defendants in possession is the owner of and seised in possession and law severally of disHnct parcels or tracts of land within the large tract described in said amended bill. He further denies that upon the death of the said Maria Bigelow the defendants, other than those above specifically named, or those under whom they claim, entered into possession of the real estate described in the said amended bill or iIi this defendant's first plea, as tenants in common with the complainants and the other defendants herein. "Wherefore the defendant demands the judgment of this court whether he shall be compelled to answer complainants' said amended bill, and humbly prays to be dismissed with his reasonable costs." The pleas are properly certified to by counsel, and sworn to by the defendant. The complainants have set them down for hearing without making any reply thereto, which operates as an admission of all the facts therein alleged, which are well pleaded, for the purpose of determining whether any or either of them constitutes a sufficient answer to the suit. It is not usual, or in conformity with proper practice, for a defeudant, without previous special leave of the court, to file several separate pleas, or to present several distinct and independent defenses in one plea to the suit, for the reason that the defense proper for a plea is such as reduced the cause or some distinct part of it to a single point or issue; the obJect of the plea being to save litigants the expense and trouble of going into the evidence, and a trial at large. In Mitf. & T. Eq. PI. 381, it is said that....... "It is generally concurred that a plea ought not to contain more defenses than one; and, though a plea may be bad in part and not in the whole, and may accordingly be allowed in part and overruled in part, yet there does not ap-' pear any case in which two defenses offered by a plea have been separated, and one allowed as a bar." The reason for this rule is fully and clearly explained on pages 382 and 383 of the same work. The plea may consist of a variety of facts and circumstances, without being bad for duplicity or multifariousness, provided they furnish as their result one clear ground upon which the equity of the bill, or the part thereof pleaded to, may be disposed of. 1 Daniell, Ch. Pro 607; Story, Eq. PI. § 654; Didier v. Davison, 2 Sandf. Ch.; 61. In the present case the plea or pleas present four separate, distinct, and inconsistent defenses, viz.: (1) That defendant was at the commencement of the suit,and still is, sole owner in fee-simple of the particular lots or parcels of land described; (2) that at the bringing of the,suit he was, and still is, in the open, notorious, continuous, and exolllsive possession thereof, claiming and holding adver::;ely to complainants; (3) that were, before and at the time of bringing their suit, ousted and disseised, and out of possession, and therefore
ll'CLOSKEY V. BARR.
their remedy is at law; and (4) that the suit is multifarious in joining defendant with others holding and claiming distinct parcels of the land described in the bill. Here we have averments of ownership in fee, ouster and disseisin of the complainants, adverse possession, or the bar of the statute of limitation, and multifariousness, all interposed and tendered or issued to complainants, to be tried, if replication is made thereto, before defendant can be called upon to answer, and make the discovery sought by the interrogating portion of the bill. In Emmott v. Mitchell, 9 Jur. 171, it was held that a plea which was in effect a plea of the statute of limitations and of no liability ever incurred, was double, and inconsistent, and' therefore bad. So, in Watkins v. Stone, 2 Sitn. 49, it was held that a plea which averred that a fine was levied of an estate claimed by the bill, and that such estate was the only part of' the property claimed in which the defendant had any interest, should be overruled as a double plea. The pleas interposed in the present case do not indicate whether they go to the whole bill or to any particular portion of it. Nor is this defect in the pleading aided in any way by the answer filed in support of the plea. It is in fact difficult to perceiv-e what support was intended to be given the pleas by the answers filed in connection therewith, which fail to deny the material facts alleged in the bill. If complainants should reply to those pleas, and· take issue thereon, and anyone or more of the defendants filing the same should sustain his plea or pleas, would the whole bill be dismissed? If not, what l'ortion of it? Again, pleas in bar are not favored; inasmuch as the defendant, especiall)' in equity suits, has other and ample modes of defense open to him. They are accordingly required to be explicit in their averments, and upon their face to disclose a complete defense. All the facts necessary to render the plea a complete equitable bar to the case made by the hill (so far as the plea extends) must be clearly and distinctly averred in order that the complainant or plaintiff may take issue upon them. In a plea in bar the assumes the onuS probandi, and must state the case or facts on which he relies with the same clearness that a plaintiff or complainant is required to do when by his suit or bill he tenders the defendant an issue. When the defendant undertakes by plea setting up matters in pais to bar the complainant, it is just as incumbent on him to set out the facts on which he relies as it will be incumbent to prove them on the trial of issues tendered. Strictness is demanded in such pleas. Thus it has been held that in a plea of a release the defendant must set out the consideration upon which the release was made in order to make the plea good. So, in setting up the plea of innocent purchasers without notice, the plea must contain all the requisites of such a defense including the payment of the consideration. In Secombe v. Campbell, 18 Blatchf. 108, the plea interposed was that of a bonafide purchaser for a "good and valuable consideration, to-wit, a certain sum of money then advanced and paid< by him to her;" the court held that the plea was bad for not setting the amount of the COIisideration in traversable form. So, when the plea interposes the statute of frauds, the court will require all the facts to be presented to enable it
to decide whether the plea will be available. Bailey v. Wright, 2 Bond, 181. Now,taking the pleas in question by those rules, we notice first that it is not clearly and distinctly stated in either of the several,pleas that the particularlots or parcels of land set out in the first plea forms a part of or is !included in the 160 4-10 acres described in complainants' bill. That.fact is only inferentially disclosed in the third and fourth pleas.. But it is not for the court.to indulge in inferences to supPQrt this first plea, even conceding that tbe averments of one plea could be looked to in .orderto.supplement and cure defects in another setting up a distinct defense. Again, the first plea, l?etting up ownership in fee-simple in and to .the parcel or parcels mentioned therein, does'riot exhibit any title to snch parcel or parcels, nor does it allege how, or from whom, defendant:acquired such ownership in fee. It does riot state any. fact or facts from which the court can see that defendant is owner in fee-simple. The averment of title in a pleading is not the allegation of a fact, but of the con8equence of facts. Aside from this, in setting up thecOl:pplainants have as much right to reqnire ownership,. to state his title, as the defendant had to require the complainants (as was .done herein at a former term) to set out more specifically how and through whom they claimed to have derived their rights and interest in the land songhtto be partitioned., Suppose complainants should befrequiredto reply to this plea in its present shape, the defimdant might, upon the trial ofthe issue thus presented, attempt to show title>under and by virtue of the statute of limitations and adverse possession" and thus mergehis.separate. pleas. The defendant says' he is the 'ownerin fee; but his plea does not, on the face of it, show to the court that he has such a' title .as to form a complete equitable orlegal bar the oose made by the bill. This first plea is evasive. in that it does not disclose the defendant's whole case on the facts. ,; Instead of setting forth the facts on which his claim of ownership is founded ina . traversli.hlEiform, the defendant has contented himself with making his own deductions therefrom, ana averring only what is a proper conclusion of law. It is well sentled that an averment of Ii. conclusion of law is generallY. i bad pleading. . It raises no issue, does not prevent judgment being !rendered on the pleadings, need not he denied,and is not admitted by demurrer. It. may not always be easy to determine or to describe whatis a conclusion of law, and what is merely an averment of fact. Bqt, numerous adjudged cases settle, as we think, that defendant's first ipleashould he treated as averring Ii. conclusion 'of law when considei'ecHnthe light of the admitted allegations ofthe bill. In Larirrwre v. Wella,29'Ohio 8t. 13, an averment that a note was" not oJ,ltstanding" agaipst,the.·defendant was :held' to be a conclusion of law. 80 with the averment :that there was "nothing due thereon." 80 in Van Wert v. Webster, ,M Qlh.io 8t.420; an allegation that an "injury will be irl'eparable"washeld ,to:be.a conclusion of law, and had, if the facts were not stated. In Quisenberry v. Artis, 1 Duv. 30, an averment that one was .the legal owner of the note sued on was held to state only a legal concIuI
sian. In Poorman v. MilUl, 35 Cal. 118. thi:mverinent'was that the pinty was "owner and holder,!' and this was heldto siate ortlya legal conClusion. In Thompson v. Cook, 21 Iowa, 472, it was held ·that an averment that a certain chose in action had become the property of a party, without averring how; as by assignment"etc., was a legal conclnsion, rather than a fact, and the defect in the pleading could be reached by motion. In Farley v. 120 U. S. 7 Sup. Ct. Rep. 541, where the subject of pleas in bar is considered at length, Mr. Justice GRAY, speaking for the·court. says:
into the agreement sued on, and engaging in the enterprise of purchasing the bonds and thereby acquiring the railroads, were unlawful, and did not entitle him.to the aid of a court of equity to enforce the agreement, '" '" ... wel'e plea." averments of pure matter ot law, ... '" 'Ie not to be availed
tiff's position as receiver and general manager of the raill'oads his entering
"The averments in the third part of the plea, that by reason of the· plliin-
See, also, Bank v. Insurance Co., 104 U. S. 76, 77. It was entirely practicable for defendant t6 Set out in this firstp1ea the tiUeunder which he Claimed the ownership in fee of the designated parcel, without making the discovery called for by the bill, and this he should have done. While the act of the complainants in setting down the plea for argument, instead of replying thereto, operates as anadmissian of the facts there-in alleged which are well pleaded, it must also be borne in mind that in decidillg upon the validity of the plea the bill, so far as it remains uncontradicted"is assumed to be true. In Farley v. Kittson, 120 U. S. 317, 7 Sup. Ct. Rep. 534, it was said that, even on the trial of the plea after replication thereto ,allegatiOns of the bin not denied by the plea" were conclusively admitted to be true." Applying this rule to' the present case,.and assuming, that the lots or parcels of land mentioned in the first plea are included in the 160 4-10 acre tract described in the bill, we find that neither said plea, nor the answer in support thereof, denies that Mary Jane Barr held an estate in fee in remainder in the said 160 4-10 acre tract; that she died in 1821 intestate, leaving the complainants, and those under whom they claim, together with the Barr defendants or tl,le.ir descendants, as herheirs. !it law, in whom said estate in remainder vested as tenants in common; that the life-tenant, Maria Bigelow, died inAugust, 1860; that complainants' interest in said estate was as stated in the bill; that the possession thereof was exclusively held by all or certain of the defendant heirs co-tenants with. themselves or others claiming· under them. These facts being conclusively admitted, the defendant's plea in bar does not disclose that he claims ownership in fee-simplefrom any other source or chain of tiUethan throuF;h the life-tenant, qr some of the heirs of Mary Jane Barr. If he does he should have averred the fact. The rule of pleadinK requires his avennentst() be so clear, positive, and' distinct as to re,nder hi!,! plea a complete' equitable and legal bar, and enable the complainants to take issue upon its validity. ·. ... . .. . . . .... Thelje,copd plea of the statute of is defective in ,not tiving the fact alleged in the bill that certain of the complainants were
under disability when their rights o/possession accrued, and have so continued. This plea is otherwise defective and bad in not showing when the adverse possession of defendant commenced. The bar of the statute of limitations does not clearly appear from the face of the plea. In Hardman v. Elfames, 2 Mylne & K. 732, it was held that a plea that the title of the ,plaintiff, or of the person through whom he claims, accrued at a particular time, and that the possession of the property, and the receipts of the,rents and profits thereof, have been adverse to him and the person through whom he claimed ever since that time, should be overruledif it did not set forth the facts and circumstances constituting such arlverse possession, because adverse possession may consist in various things; and, if none of those are specified, the plaintiff may have no precise knowledge of the defense which he is to meet. Their plea is further· more defective in stating a legal conclusion without giving all the material facts On which that conclusion rests. ' The same objections apply in all their force to the third plea of oustel and disseisin, which clearly states a conclusion of law, and is wholly wanting in any proper averments of facts or circumstances to sustain that legal conclusion; This plea does not present on its f.'lce any equitable par to the case made by the bill, and is fatally defective and bad. As to the fourth plea, that presents properly matter for demurrer; and even as a demurrer it would not present a proper ground of objectionto the bill. Our conclusion is that these pleas are all insufficient, and should be disallowed and overruled, and it is accordingly so ordered, with costs. The defendants interposing said pleas may have leave to treat them as answers in the cause, if they elect so to do, or they mftY file new an!lwers herein, and they are allowed 30 days withiu which to answer.
PHILAI>ELPHIA NAT. BANK .". DOWD.
(C\'rcuit Oourt, E. D. North Oarolina. 1.
.r'ebruary 16, 1889.)
BANKS AND BANKING-COLLECTIONS-INSOT.VENcy-RIGHT TO FOLLOW TRUST
FUNDS. . : Plaintiff sent to defendant's bank paper indorsed "For oollection and immediate return" to plaintiff. and the pap.er was collected. and the proceeds mingled with other moneys of the bank, instead of forwarded to plaintiff. The bill contained an uncontroverted allegation that defendant's bank. at all times subsequent to the collection and at the time of defendant's appointment as receiver, had 9n hand cash toa greater amount than that due plaintiff. The bill askep to have the balance due plaintiff paid in full on the ground that the bank by 'receiving the paper for collection and immediate return became a trustee. and that either its entire property or the money in its vaults became with the trust.. i.f t!Ie mingling o! the funds was a of trust: It was a conversIOn; and plamtl1f became a SImple contract credItor, with n.o preference at law. .,