Flanders v. McVickar

| Wis. | Jan 15, 1859

By the Court,

Cole, J.

It does not admit of a doubt but that there is a technical defect in the reply of the appellant, wherein he denies on information and belief that, at the time of filing the answer of the respondents, he was not seized in fee of the premises, and denies that at the time of the execution of the deed by him to the respondents, he was not seized of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law in fee simple, in and to the premises, &c.

By way of defence to the action for foreclosure of the mortgage, the respondents in their answer allege that the deed of the said premises in said mortgage and complaint mentioned, so executed by the appellant to them, contained among other things a covenant to the effect that the appellant did grant, bargain and agree to and with them, that at the time of the ensealing and delivery of said deed, he was well seized of the said premises as of a good, sure, perfect, absolute and indefeasible estate of inheritance in law in fee simple, and they allege that he was not then seized of said premises as of a good, perfect, absolute and indefeasible estate of inheritance in law in fee simple, but as to thirty one hundred and sixteenths thereof, the title was in dispute and worthless, thus negativing generally the words of the covenant in the deed. It will be observed that the reply, instead of alleging affirmatively in the language of the covenant that the appellant was seized, &c., denies that he was not seized, &c. This is certainly defective pleading, and the question is how it is to be taken advantage of under the code. By the old practice the opposing party would have specially demurred to such a pleading. But the code has wrought most important changes in reference to the pleadings in an action; section 61 declares what 'shall be a ground of demurrer to a reply, which is insufficiency. That is, we suppose, where the statements and allegations of the reply do not in substance constitute any defence or denial to the counter claim or ew matter set up in the answer. The insufficiency relates rather to the substance oí the reply than the form of expression. The code likewise requires in the construction of pleadings for the purpose of determining their effect, that the allegations shall be liberally construed with a view to substantial justice between the parties; section 65. In the present case we think the substance of the reply good and sufficient, but that the manner in which the allegations are made is quite defective. But still the objection is not to the substance but to the form of pleading.. For if the appellant had alleged in the reply affirmatively, that he was seized in fee of the mortgaged premises . at the time of the execution of his deed, as of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law 5 that there were no valid liens existing upon the premises, and that the title was good and perfect, it would have been deemed a sufficient denial of the new matter set up in the answer. The defence relied on in the answer is a failure of title to a portion of the property and outstanding incumbran-ces, &c. And really the appellant replied that there was no failure of title, or no incumbrances upon' the premises. It is very evident that this was the object of the pleader who drew the reply, although he framed the allegations in a very inartistic manner. If however the respondents had any doubt as to the allegations of the reply, or as to the precise nature of the^ denial or defence relied upon in the reply, they could have moved the court to require the pleading to be made more definite and certain under section 66, and this we think was the course the respondents should have pursued under the circumstances, instead of demurring for a defect in form.

The order of the circuit court sustaining the demurrer to the reply must be reversed, and the cause remanded for further proceedings.