6 Indian Terr. 60 | Ct. App. Ind. Terr. | 1906
(after stating the facts). The testimony introduced at the trial on the part of the plaintiffs tended to show. That there was executed by Mrs. Minnie Thomas, who had title to the premises in controversy, to Munzesheimer & Daube, two contracts of lease. The first was executed by her on the 20th day of October, 1894, during the lifetime of her former husband, McCauley, and signed by both plaintiff and her husband. That by the terms of this instrument the premises were leased for the term of three years without any provision f or the future rental of the land, thus making the lease terminate
After the testimony relating to the execution of the two deeds of lease had been taken, the defendants' counsel moved the court to strike out all of it relating to the execution of the first deed, on the ground that the plaintiff had admitted the execution of the later one, and therefore all proof of the first one was irrelevant and immaterial; that not having pleaded the second deed in their complaint or made any allegation of its fraudulent procurement, they could not, in an action of unlawful detainer, be allowed to prove it: The court overruled the motion and an exception was saved. The instructions of the court fairly left to the jury the question as to whether the second contract was fraudulently procured by defendants’ grantor. If so, they were told that they should find for the plaintiff; if not, they sho.uld find for the defendants. All proper excéptions were saved to this charge. Upon this branch of the case the question, then, is: In an action of unlawful detainer, where the plaintiff brings his action on the ground that the terms of a lease by him to the defendant had expired, and the defendant in his answer sets up a later lease, executed by the plaintiff to him, the terms of which have not expired, can the plaintiff, without in some way having pleaded the fraudulent transaction upon which he relies to defeat the later deed, or having procured its cancellation in a Court of Equity, be permitted to offer proof of the fraud?
All of the cases cited by counsel for appellants, except Dysart vs Enlow and Kellog vs Lewis, Vere actions of ejectment, and were tried and decided in states the courts of which still adhered to the strictness in pleading and proof of the old common-law action of ejectment. Under the statute relating to ejectment in force here, all fictitious pleadings are abolished, the real parties in interest must be parties to the suit, and the judgment of the court in the action is conclusive of the title. Although the statute relating to the action of ejectment does not in words say that the judgment shall be conclusive of the title, yet the Supreme Court of the United States, in Sturdy vs Jackaway, 4 Wall. 174, 18 L. Ed. 387, decided, in passing on our statute of ejectment: “A final judgment pronounced in an action of ejectment, where the claim of title in fee simple absolute by the parties, respectively, was the sole subject of controversy, instituted and prosecuted under and according to the forms and in the manner prescribed by the statute laws of the state of Arkansas — that is to say, by a suit between
In the case of Blanchard vs Brown, 70 U. S. 245, 18 L. Ed. 69, a case which went to the Supreme Court of the United States from the Circuit Court of the Northern District of Illinois, the court say: “Various judgments had been given against a debtor in Chicago owning real estate there, among them one in favor of Lyman. Execution issued in April, 1847, and on it, in April, 1848, the premises were sold to Blanchard. A certain Hart had also obtained judgment against the same party. Execution issued in 1845, but was not returned into the clerk's office until 1852. The execution, it seemed, recited a judgment of the Cook county court of common pleas, a court not at the time in existence, that court having been created by act of Legislature only in 1848, and the name of the court in which the judgment was really given, to wit, the ‘Cook County Court,’ having in that act been changed to it. An alias was subsequently issued on the same judgment, and the land sold for $71 to Brown; its actual value at the time being about $2,000, or, as was alleged, $4,000. Blanchard being in possession, Brown brought ejectment against him. Both parties, of course, claimed under the same judgment debtor, and by virtue of their respective judgments and execution sales; the judgment under which Blanchard claimed being junior to the one on which Brown rested his title, and judg
Miles vs Caldwell, 69 U. S. 35, 17 L. Ed. 755, cited in Blanchard vs Brown, was a bill in equity to quiet title to land which in a previous action of ejectment had been adjudged to the defendant, Caldwell. In the ejectment suit Miles, who was the plaintiff, claimed under a mortgage. The defendant, Caldwell, without pleading fraud, offered proof before the jury to the effect that the mortgage of Miles was bad, as having been made in fraud of creditors. Miles offered proof that his mortgage was not fraudulent, but was given for a valid debt.
Our practice and pleading in ejectment, as well as all other forms of action, is under'the Arkansas statute. By that we are bound. And as has been shown, under the statute ejectment is stripped of all the fictions of 'the common-law actions. The persons in interest must, be the real parties t-o the suit, and the judgment is a finality. We are in exact line with those states which, have adopted the modem forms so often mentioned by the Supreme Court of the United States, as well as of the various states, in their decisions. Now, upon the matter before us, it stands upon the same footing as other actions, and, whatever may be set up in a court of law as to fraudulent procurement if an instrument of writing in one, may be set up in the other. And therefore, if it be true that the statutory action of unlawful detainer is analogous to ejectment, and must be governed by the same rules, as is contended for by counsel for appellants, under the rules as they now exist in many of the states, and certainly within this jurisdiction, fraud may be pleaded and proven in both.
That fraud in the execution of a deed or other instrument of writing may be pleaded and tried at law as well as in equity is now so firmly ingrafted upon the law as to need no citation of authorities. Mr. Newell, in his work on Ejectment (section 10), speaking of tins subject as it applies to an action of ejectment, says: “The rule is familiar, wherever the distinction between law and equity is preserved, that in a trial at law fraud in the execution of a deed may be given in evidence, as that, through misreading, or the substitution of one paper for another,
No principle of the law is more firmly ingrafted upon our jurisprudence, than that fraud in the execution of an instrument renders it absolutely void as to the party guilty of the fraud, and that it is available to him for no purpose; and that courts at law have concurrent jurisdiction with courts of equity to prevent its use as evidence, thereby preventing the fraudulent party from obtaining any advantage by it..
We hold that a fraudulent execution of a deed of lease may be shown by oral proof in an action of unlawful detainer. In this case the plaintiff pleaded her original lease, expiration ■of the term, and demand for possession. The defendants, by their answer, pleaded a subsequent lease, executed to their .grantor by the plaintiff, the deed shown to have been fraudulently •executed. There were other matters pleaded, but the case was tried and decided upon the issues as above set forth. There was no allegation of .fraud set up, either in the complaint or .answer, as to the issue upon wuich the case was tried.
It is contended that, as the plaintiffs did not allege fraud, they should not have been allowed to prove it. Section 5022, Mansfield’s Dig. (Ind. Ter. Ann. St. 1899, § 3227), provides: “The only pleadings allowed are: First. The complaint by the plaintiff. Second. The demurrer, or answer, by the defendant. Third. The demurrer, or reply, by the plaintiff.” Section 5025 (section 3230) provides: “An issue of law arises: First. Upon a demurrer to the complaint, answer or reply, or to some part thereof. An issue of fact arises: First. Upon a material allegation in the complaint denied' by the answer.
Under the common-law pleadings all new matter properly-pleaded set up in the answer should be met by a replication.. Under that system of pleading, it would have been incumbent: on the plaintiff in this suit to have filed his replication setting-up the facts which rendered the deed void. But under our law of pleading and practice this cannot be done, because it is neither a set-off nor a counterclaim; and, unless these are-averred, the pleadings stop with the answer. It was never intended by this abbreviation of the pleadings, that the plaintiff should be cut off from defending against new matter pleaded, in the answer. Every new matter set up in the answer, except it be a counterclaim or set-off, which the plaintiff could have-replied to by his replication by the old System, he may now reply to by his proof. The plaintiff pleads a deed of lease_ The defendant pleads a subsequent deed of lease. The pleadings-can go no further; but the law steps in and denies for the plaintiff the new léase — that is, that any valid lease other than the first was executed by plaintiff. And, as the plaintiff is cut. off from pleading the facts which render the deed void, he may prove them. And this does not deprive the defendant of any right to plead or have advantage of any new matter, which he could have set up in his answer under the old system of pleadings. The only difference is that then the particular ground of defense upon his new matter would have been specifically-pointed out by the replication, and all other matters proper to reply to would have been taken as confessed; but the defendant, except as to set-off and counterclaim, must now come.
In this case we are of the opinion that the proof of the fraudulent execution of the deed of lease set up in the answer was properly admitted in the trial of the case. .The charge of the court fairly submitted the ease to the jury upon the question of the fraudulent character of the second lease. There was .ample proof to justify the submission of the question to the jury-
Finding no error in the trial of the case, the judgment of the court below is affirmed.