9 S.C. 438 | S.C. | 1878
The opinion of the Court was delivered by
This was an action to recover possession of certain real estate of which the defendants have possession. There were two defenses set up in the answer: 1. A denial of the plaintiff’s title. 2. An assertion of title in the defendants. The plaintiff moved to strike out the answer as sham, and based his motion on certain affidavits hereinafter more particularly referred to. The Circuit Judge having granted the motion, and stricken out the answer as sham, it was referred to the jury to assess the damages, and upon their verdict a judgment was entered that the plaintiff recover the real estate in question, together with the damages assessed by the jury, and his costs. This is now a motion to set aside such judgment, together with the order striking out the answer.
It seems to us that the first defense amounted to a general denial, and would put the plaintiff upon the proof of his title, just as the plea of the general issue in the old action of trespass to try titles would do — the rule in such a case being that the plaintiff must recover upon the strength of his own title and not upon the weakness of his adversary. — Hanghabaugh vs. Harrald, 2 Tr. Con. Rep., 92.
In Wayland vs. Tysen, (45 N. Y. Rep., 281,) it has been decided that “the Court has no power to strike out as sham an answer consisting of a general denial of the material allegations of the complaint.” The fact that the answer in that case was verified, while it is not in the case now before the Court, can make no difference, for in 1 Tiffanny & Smith’s N. Y. Prac., 384, in speaking of sham defenses, it is said : “The provisions of the Code apply equally to denials of allegations of the complaint as to affirmative or new matter, and equally to verified as to unverified answers.” We do not, therefore, see upon what ground the order of the Circuit Judge striking out the answer as sham can be sustained. For, assuming for the present that the answer, so far as the second defense was concerned, was shown to be sham, there stood the first defense, raising an issue which ought to have been referred to the jury for trial. The reasons which influenced the mind of the Circuit Judge are not stated by him, but if we are allowed to infer them from what is said in the argument here, it would seem that he considered the first defense as dependent upon the second; or, in other words, that the defenses set up in the answer amounted simply to an allegation that the plaintiff had no title because the defendants did have title, and
The defendants not only asserted title in themselves by their second defense, but proceeded to disclose the grounds upon which such assertion rested. These were, that by virtue of an agreement made by them with one E. L. Patterson, acting as agent of the former owner, A. W. Atkinson, they went into possession of the land in question, under a contract to purchase, and the defendants were ready and willing to comply with the terms of such agreement on their part, but were prevented from so doing by the fraudulent conduct of said Patterson, who conspired with the plaintiff and said Atkinson to deprive the defendants of their rights under such agreement by bringing about a pretended sale and conveyance of the premises to the plaintiff by said Atkinson, which conveyance was without consideration, fraudulent and void. The only affidavits upon which the motion to strike out the answer as sham was based were the affidavits of the parties charged with this fraud and conspiracy, viz., E. L. Patterson, A. W. Atkinson and the plaintiff, in which they deny explicitly the charge made. It strikes us as a very unsafe practice to allow such issues to be decided upon a mere motion based upon affidavits, and these, too, the affidavits of the parties who were charged with the fraud; and, therefore, as the case is presented here, we do not think there was sufficient ground for striking out the answer as sham. We are aware that some of the New York Courts have gone very far in this direction — much further than we propose to go. We prefer to be guided by the rule as laid down in Tharin vs. Seabrook, (6 S. C., 117,) where it is said: “ If the pleading is manifestly false and interposed to delay or defeat the plaintiff’s action, the Court will strike it out. This power
It may be, however, that there was something more presented to the Circuit Judge than what appears in the “ case” as presented here. Indeed, it is not improbable, from what was said in the argument, that the agreement referred to in the answer, which is not before us, was before the Circuit Judge, and that, upon examination, it proved to be of a wholly different character from that represented in the answer and altogether insufficient to support the defense, or, perhaps, in direct conflict with it. But, be this as it may, we cannot, under the rules of this Court, allow any facts which are not to be found in the “ case ” as presented here to influence our decision.
The judgment of the Circuit Court, together with the order striking out the answer as sham, must be -set aside and the case remanded to the Circuit Court for trial.
Motion granted.