Russell v. Moffitt et al., 6 Howard 303

Mr. Chief Justice Sharkey delivered the opinion of the court. For the appellant it is contended that the answer cannot be taken as true, any further than it is responsive to the bill, and that the decree was therefore wrong; whilst on the other hand it is contended that the entire answer is to be taken as true.

We understand the practice in this state to be, that if the cause be set down for hearing by the complainant on bill and answer at the return term, as it may be under our statute, that then the entire answer is to be taken as true; but if there be a continuance and deposition opened, then, as the rule of court dispenses with a replication to the answer, the cause stands as though a replication had been filed, and all matter in avoidance set up by the answer must be proved.

There were several continuances in this case, and under this rule, if the answer contained matter which was not responsive to the bill, it should have been proven; but does it set up new matter ? The bill prays a discovery, and, besides the general allegations, special interrogatories are propounded. The defendants are first required to answer whether the lands were owned jointly by them, at the time of the contract; and if they were, whether he Moffitt, was not authorized to sell the same. Second: what consideration passed from McKay to Moffitt for his interest in the land?

Third: what amount of money was paid by McKay therefor, or what was to be paid, and when and how secured? Moffitt answers, in substance, that the land was entered by him in the name of himself and McKay, with money furnished by McKay, according to an agreement for that purpose. That it was agreed when he should pay McKay half of the money so invested, with ten per cent, interest, he was to have half the lands entered.

The answer also denies that he represented himself as being the absolute owner and able to convey, but avers that complainant was fully apprised of the nature of his title, and that the bond was given to be operative only on condition that the sale should be sanctioned by McKay. It also avers that the respondent offered to convey his undivided moiety to complainant on the payment' of a certain sum, which proposition was refused, and concludes by averring that being unable to pay McKay the money, the land was conveyed to him according to their contract.

Now, it may be that there is some matter here which is not fairly responsive to the bill. It is often difficult to confine the answer within the precise limit, and it is especially so where the transaction is complicated; but surely there is enough of this answer which is strictly responsive of the bill, to justify an affirmance of the decree. The nature of the ownership between respondent and McKay is called for, and it is stated.

The consideration given by McKay is called for, and it could have been stated in no other way than by disclosing the contract between them, and thus enough is properly stated in the answer to show that Moffitt could not convey. The complainant is secured by a penal bond, on which he has a remedy at law, and to that he must look for redress. Against the prior equity of McKay we cannot decree a specific performance; to do so would be to enforce a contract made in breach of a private duty. The decree of the chancellor must be affirmed.