Costello v. Tasker
116 N.E. 573
Mass.
1917
Check Treatment
Braley, J.

It is elementary law that the office of an answer is to controvert the facts or some of them alleged in the bill, and to set up other facts upon which the rights of the defendant depend in the subject matter of the suit. While exceptions to its insufficiency can no longer be alleged, it would have been on the record appropriate practice for the plaintiffs to have moved to take the bill for confessed because each defendant filed only a general denial. Pearson v. Treadwell, 179 Mass. 462, 467, 468. Reed v. Cumberland Mutual Fire Ins. Co. 9 Stew. 393. McTwiggan v. Hunter, 19 R. I. 68. Whittemore v. Patten, 81 Fed. Rep. 527. The rule, even where' the oath is waived or rendered unnecessary by statute, is that the plaintiff is entitled to discovery as to the matters charged in the bill, and, if the defendant answers, he must answer fully except as to matters which are “purely scandalous or immaterial or irrelevant,” or, if he is wholly ignorant, he may aver that he cannot further answer either as to his knowledge or belief. The answer also may admit the allegations as stated in the bill with or without averring additional facts, thus making a case for the decision of the court. But, if all the facts are not admitted, the plaintiff by a replication may join issue, which completes the pleadings. Mazarredo v. Maitland, 3 Madd. 66. Bank of Utica v. Messereau, 7 Paige, 517. King v. Ray, 11 Paige, 235. Morris v. Parker, 3 Johns. Ch. 297. Warren v. Warren, 30 Vt. 530. Carr v. Bosworth, 68 Iowa, 669.

It is hardly necessary to add that a general denial of each and every paragraph or item, while entirely suitable as an answer to a count upon an account annexed, cannot be" considered a compliance with the requirements of an answer to a bill in equity. Moors v. Moors, 17 N. H. 481. Woods v. Morrell, 1 John. Ch. 103, 107. The plaintiffs, however, having waived the insufficiency by joining issue, we consider the case on the merits. Slater v. Maxwell, 6 Wall. 268.

The plaintiffs as vendors engaged to convey a good and clear title to the parcel in question by a sufficient deed, and, if they were unable to perform the contract, the default of the defendants, the purchasers, at the time and place named for performance is immaterial. Noyes v. Johnson, 139 Mass. 436. First African Methodist Episcopal Society v. Brown, 147 Mass. 296. Mansfield v. Wiles, 221 Mass. 75, 81-83.

*223If the minor Richard W. Costello had not died after the license to sell his undivided one quarter interest had been obtained, a good title could have been tendered. But by his death before the sale could be consummated the guardianship terminated, his title was divested and passed to his mother, the plaintiff Elizabeth W. Costello, as his next of kin, who, although appointed administratrix of his estate, and a party to the contract in her own right, is not shown to have taken any steps which would enable her to convey an indefeasible or unimpeachable title of the intestate’s interest to the defendants. Chauncey v. Leominster, 172 Mass. 340.

A compliance with this requirement, even after the bill was filed and before trial of the merits, would have been sufficient, and the defendants would not have been permitted on this ground to excuse themselves from performance. Dresel v. Jordan, 104 Mass. 407, 414, 415, 416. National Webster Bank v. Eldridge, 115 Mass. 424, 428. The plaintiffs having failed to prove that the title tendered by the bill will not expose the defendants to litigation, the decree dismissing the bill should be affirmed with costs. Sturtevant v. Jaques, 14 Allen, 523, 526. Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319, 321.

Ordered accordingly.