Hanscom v. Herrick

| Minn. | Aug 4, 1874

Berry, J.

The counsel for the plaintiff presented and pressed his construction of the answer in this action, with so much ingenuity and earnestness upon the argument at bar, that we have hesitated long before announcing our inability to agree with him. The counsel appears to us to have erred in confining the effect of the amendments of the original answer to the portions amended, overlooking the fact that an amended answer is the only answer in a case, and is to be construed as if it were the only one which had been interposed. Every part of such amended answer is to be looked at with relation to every other part of the same, precisely as in the case of an original answer.

Now the amended answer alleges that “ on November 21, 1872, said defendants made and entered into a contract and agreement to and with one J. C. Hassinger, whereby they agreed to exchange said lot two for the eighty acres of land described in plaintiff’s complaint; and, on the day last aforesaid, said defendants by their deed conveyed said lot two to said Hassinger, in consideration of which said Has-singer and wife made and executed, in due form of law, and delivered to defendant Sarah Herrick, their deed of the said eighty acres of land.”

The answer had previously averred that Moses Herrick, on July 11, 1872, purchased said lot two, and that the title deed to the same was made and delivered to him.

Subsequently to the above allegations as to the purchase of Hassinger, the answer alleged “that said defendants caused said eighty acres of land to be conveyed to defendant Sarah Herrick, for a good and valuable consideration by her paid,” etc.

The plaintiff contends that this is an allegation that the land was conveyed to Sarah Herrick, for a good and valuable consideration by her paid to Hassinger. But looking at this portion of the answer, in connection with the previous allegation that the consideration paid to Hassinger was lot two, the property of Moses Herrick, as this is not a necessary, so it is not a fair, construction. Something else is to be presumed to be meant by it. And viewing the allegation carefully, it is seen that it is not an allegation that the land was conveyed to her, for a consideration by her paid, but that the defendants caused it to be conveyed to her, for a consideration by her paid. It would seem, then, that the language used rather imports payment to defendants, for causing the conveyance to be made, than to Hassinger. If this be not so, then the answer is simply indefinite as respects the party to whom the consideration was paid. Upon either of these constructions, the evidence received for the purpose of showing that the consideration was paid to Moses Herrick by Sarah Herrick, was competent and admissible.

The court below finds, in substance, that Moses Herrick caused the eighty acres to be conveyed by Hassinger to Sarah Herrick, for a valuable consideration paid by her to said Moses. We think that, upon the evidence reported, this conclusion cannot be said to be strained or unwarranted. Instances are so frequent in which the property of a husband is put into the name and hands of his wife, to cover it from his creditors, that transactions between husband and wife, such as appear in this case, are almost always viewed with suspicion; but whatever doubts we may have as to the bona fides of the conveyance to Mrs. Herrick, we discover no grounds sufficient to warrant us in overturning the decision of the court below.

Judgment affirmed.