Devereaux v. Cooper

11 Vt. 103 | Vt. | 1839

The case having been heard upon bill and answer, the-opinion of the court was delivered by

Redfield, Chancellor.

It seems to have been considered by the counsel in this case, and so the court have considered the matter in coming to a determination, that the allegations in the bill are admitted by the answer.

The court have been induced to consent to this course, in order to save delay and expense to the parties, in a case where the decree is merely formal. But as all cases are now required to be reported, lest this should be drawn into precedent, and thereby mislead the profession in regard to the course of practice in this court, it is necessary to say that the answer does not expressly either admit or deny the alleged consideration of the deed from the orator to his son. This fact being material in the case, and explicitly alleged in the stating part of the bill, it became necessary for the defendant to deny all knowledge and information upon the point, in order to excuse himself from either admitting or denying the truth of the allegation. Morris v. Parker, 3 Johns. Ch. R. 297. If the defendant has any information upon a material matter alleged in the bill, aside from the bill itself, he is bound to state his belief of the truth or falsity of the allegation.— Smith v. Lasher, et al. 5 Johns. Chancery R. 247. So that in the present case, as the defendant, in his answer, in rela- ” . t tion to the consideration of the orator’s deed to his son, says that he “knows nothing except what he derives from the deed, bond, and lease mentioned in the orator’s bill,” the allegation is not strictly formal, and, upon exceptions to the answer, the defendant could be required to say whether he believes the consideration alleged in the orator’s bill is the true consideration of the deed. This, under our system, would cause a delay of another year at least. The defendant. seems to have considered his answer equivalent to an admission, that the consideration expressed in the bill was the true consideration of the deed,' This, perhaps, is the fair construction of ¡he answer. It refers to the deed, lease and bond, as containing all of defendant’s information upon the subject. These are set forth in the orator’s bill in hcec verba. In those writings it is expressly declared, under the hand and seal of the defendant’s intestate, that the consideration of the deed was the bond executed by the intestate for the orator’s and his wife’s support, during life.

Waiving the technical difficulty alluded to, which the parties seem to have disregarded, there .does not appear to be much ground of doubt of the orator’s right to hold the land, which the defendant has inventoried as part of Heman Devereaux’ estate. The contract of maintenance between father and son seems to be one, in some sense, of a personal character, and one which it would be very difficult, or indeed impossible, for the creditors or the administrator to perform. Heman Devereaux has already had the benefit of one portion of the estate, which he conveyed to a person not a party to the bill, and which could not be reached by this bill. It is but a few years since the contract was made, and the son seems to have had the benefit of some portion of the property, admitted by the answer, and no further claim is insisted upon in the answer. Upon the whole, we are inclined to quiet the title of the remaining portion of the real estate in the orator. As there might be some difficulty in describing a conveyance, and a decree in a different form will be equally efficient in granting the title;—

It is ordered and decreed, that all that portion of the estate mentioned in the orator’s bill, and inventoried by defendant as belonging to the estate of Heman Devereaux, be transferred to and forever quited in the orator, and that he . cause the decree oí this court in the premises, drawn up m ProPer f°rm, to be recorded in the office of the town clerk of the town of Richmond within sixty days from the rising of tfjjg court_