38 F. 165 | U.S. Circuit Court for the District of Southern Ohio | 1889
This cause is now before the court on the sufficiency of the pleas filed herein by Ed. A. Foy, William A. Blanchard, Henry Van Mater, and others, defendants, adopting the same, and agreeing to be bound by the action of the court thereon, to the second amended bill, filed by complainants November 7, 1888. The case made and presented by said second amended bill is briefly this: The complainants allege that they, together with certain of the defendants other than those interposing said pleas, were the legal heirs of Mary Jane Barr, who was seised in fee in remainder of the 160 4-10 acres of land described in the pleadings, subject to the life-estate 'therein of one Maria Bigelow; that their said ancestor, the tenant in fee in remainder, departed this life intestate November 21, 1821, when said estate in remainder descended and became vested in them and the other heirs and descendants of said Mary Jane Barr (made parties defendant) as tenants in common; that the life-tenant, Maria Bigelow, died August 3, 1860, when their right of possession and that of their co-tenants accrued, and that at the date of the accrual of their right of possession upon the termination of said life-estate several of the complainants, specially named, were under the dis
“(1) That at the time of the bringing of this suit, and long prior thereto, this defendant was, and still is, the sole owner in fee-simple of the entire title of the following described premises, viz., (then setting out certain lots or parcels of land in Cincinnati.) (2) -That at the time of the bringing of this suit, and long prior thereto, this defendant was, and still is, in the open, notorious, continuous, and exclusive possession of the said premises as the sole owner thereof, and claiming and holding adversely to the complainants and all the world. (3) He further says that the said complainants were, at the time of the bringing of this suit and long prior thereto, ousted and disseised and out of possession of said premises, and he says that complainants seek, by their second amended bill, to recover the possession of a portion of the said land, and to establish their title therein; wherefore he says that the relief sought .by the said complainants’ second amended bill is not ot equitable cognizance, and that they have adequate remedy at law to recover possession, and establish their title, if any they have. (4) And this defendant further for plea saitli that he is the sole owner and holder of the premises described in his first plea above, reference to which is hereby made part hereof; that said second amended bill is exhibited against this defendant and some two hundred other defendants in possession of distinct tracts or parcels of land included within the tract described in the second amended bill; that this defendant has no interest or claim to tracts held and owned by the other defendants, and the said other defendants have no claim to or interest in the tract held by this defendant described in the first plea aforesaid; and this defendant says that if his case is mixed up and joined with the case of the other defendants in possession lie will be put to large expense, and great vexation and delay, by reason of the contention between the said complainants and the other defendants in possession, in which he has no interest, and from which he can derive no benefit. Wherefore he saitli that the second amended bill is exhibited against him and the said other defendants for several distinct and independent matters and causes, which have no relation to each other, and in which lie is in no way interested and concerned, and ought not to be implicated.”
Then, without “waiving his said plea,” the defendant proceeds to answer so much of complainants’ said amended bill as he deems material to make answer unto, and denies that complainants are seised in fee and entitled to the possession of an undivided one-fifth part or of any part of the real estate described in said amended bill or in the first plea; denies the defendant Barr heirs or descendants are seised in fee of an undivided one thirty-fifth part or any part of the real estate described in said amended bill or in the first plea of defendant; denies that the unknown heirs of Margaret TIattersley are seised in fee of an undivided one thirty-fifth part or of any part of the real estate described in the amended bill or in his first plea. The same denial is made as to
“It is generally concurred that a plea ought not to contain more defenses than one; and, though a plea may be bad in part and not in the whole, and may accordingly be alloAved in part and overruled in part, yet there does not appear any case in which two defenses offered by a plea have been separated, and one allowed as a bar.”
The reason for this rule is fully and clearly explained on pages 382 and 383 of the same Avork. The plea may consist of a variety of facts and circumstances, without being bad for duplicity or multifariousness, provided they furnish as their result one clear ground upon which the equity of the bill, or the part thereof pleaded to, may be disposed of. 1 Daniell, Ch. Pr. 607; Story, Eq. Pl. § 654; Didier v. Davison, 2 Sandf. Ch. 61. In the present case the plea or pleas present four separate, distinct, and inconsistent defenses, viz.: (1) That defendant was at the commencement of the suit, and still is, sole owner in fee-simple of the particular lots or parcels of land described; (2) that at the bringing of the suit he was, and still is, in the open, notorious, continuous, and exclusive possession thereof, claiming and holding adversely to complainants; (3) that complainants were, before and at the time of bringing their suit, ousted and disseised, and out of possession, and therefore
Now, taking the pleas in question by those well-settled rules, we notice first that it is not clearly and distinctly stated in either of the several pleas that the particular lots or parcels of land set out in the first plea forms a part of or is included in the 160 4-10 acres described in complainants’ bill. That fact is only iñferentially disclosed in the third and fourth pleas. But it is not for the court to indulge in inferences to support this first plea, even conceding that the averments of one plea could be looked to in order to supplement and cure defects in another setting up a distinct defense. Again, the first plea, setting up ownership in fee-simple in and to the parcel or parcels mentioned therein, does not exhibit any title to such parcel or parcels, nor does it allege how, or from whom, defendant acquired such ownership in fee. It does not state any fact or facts from which the court can see that defendant is the owner in fee-simple. The averment of title in a pleading is not the allegation of a fact, but of the consequence of facts. Aside from this, the complainants have as much right to require defendant, in setting up ownership, to state his title, as the defendant had to require the complainants (as was done herein at a former term) to set out more specifically how and through whom they claimed to have derived their rights and interest in the land sought to be partitioned. Suppose complainants should be required to reply to this plea in its present shape, the defendant might, upon the trial of the issue thus presented, attempt to show title under and by virtue of the statute of limitations and adverse possession, and thus merge his separate pleas. The defendant says he is the owner in fee, but his plea does not, on the face of it, show to the court that he has such a title as to form a complete equitable or legal bar to the case made by the bill. This first plea is evasive in that it does not disclose the defendant’s whole case on the facts. Instead of setting forth the facts on which his claim of ownership is founded in a traversable form, the defendant has contented hitnself with making his own deductions therefrom, and averring only what is a proper conclusion of law. It is well settled that an averment of a conclusion of .law is generally bad pleading. It raises no issue, does not prevent judgment being rendered on the pleadings, need not be denied, and is not admitted by demurrer. It may not always be easy to determine or to describe what is a conclusion of law, and what is merely an averment of fact. But numerous adjudged cases settle, as we think, that defendant’s first plea should be treated as averring a conclusion of law when considered in the light of the admitted allegations of the bill. In Larimore v. Wells, 29 Ohio St. 13, an averment that a note was “not outstanding” against the defendant was held to be a conclusion of law. So with the averment that there was “nothing due thereon.” So in Van Wert v. Webster, 31 Ohio St. 420, an allegation that an “injury will be irreparable” was held' to be a conclusion of law, and bad, if the facts were not stated. In Quisenberry v. Artis, 1 Duv. 30, an averment that one was the legal owner of the note sued on was held to state only a legal conclu-
“The averments in the third, part of the plea, that by reason of the plaintiff’s position as receiver and general manager of the railroads his entering into the agreement sued on, and engaging in the enterprise of purchasing the bonds and thereby acquiring the railroads, wore unlawful, and did not entitle him to the aid of a court of equity to enforce the agreement, * * * were averments of pure matter of law, * * * not to be availed of by plea. ”
See, also, Bank v. Insurance Co., 104 U. S. 76, 77.
It was entirely practicable for defendant to set out in this first plea the title under which he claimed the ownership in fee of the designated parcel, without making the discovery called for by the bill, and this he should have done. While the act of the complainants in setting down the plea for argument, instead of replying thereto, operates as an admission of the facts therein alleged which are well pleaded, it must also be borne in mind that in deciding upon the validity of the plea the bill, so far as it remains uncontradicted, is assumed to be true, in Farley v. Kittson, 120 U. S. 317, 7 Sup. Ct. Rep. 534, it was said that, even on the trial of the plea after replication thereto, allegations of the bill not denied by the plea “ wTere conclusively admitted to he true.” Applying this rule to the present case, and assuming that the lots or parcels of land mentioned in the first plea are included in the 160 4-10 acre tract described in the bill, we find that neither said plea, nor the answer in support thereof, denies that Mary Jane Barr held an estate in fee in remainder in the said 160 4-10 acre tract; that she died in 18,21 intestate, leaving the complainants, and those under whom they claim, together with the Barr defendants or their descendants, as her heirs at law, in whom said estate in remainder vested as tenants in common; that the life-tenant, Maria Bigelow’, died in August, 1860; that complainants’interest in said estate was as stated in the bill; that the possession thereof was exclusively hold by all or certain of the defendant heirs co-tenants with themselves or others claiming under them. These facts being conclusively admitted, the defendant’s plea in bar does not disclose that he claims ownership in fee-simple from any other source or chain of title than through the life-tenant, or some of the heirs of Mary Jane Barr. If he does he should have averred the fact. The rule of pleading requires his averments to be so clear, positive, and distinct as to render his plea a complete equitable and legal bar, and enable the complainants to take issue upon its validity.
The second plea of the statute of limitations is defective in not negativing the fact alleged in the bill that certain of the complainants were
The same objections apply in all their force to the third plea of ouster and disseisin, which clearly states a conclusion of law, and is wholly wanting in any proper averments of facts or circumstances to sustain that legal conclusion. This plea does not present on its face any equitable bar to the case made by the bill, ánd is fatally defective and bad.
As to the fourth plea, that presents properly matter for demurrer, and even as a demurrer it would not present a proper ground of objection to the bill.
Our conclusion is that these pleas are all insufficient, and should be disallowed and overruled, and it is accordingly so ordered, with costs. The defendants interposing said pleas may have leave to treat them as answers in the cause, if they elect so to do,, or they may file new answers herein, and they are allowed 30 days within which to answer.