Goff v. Price et cd. 5
| Decision Date | 21 November 1896 |
| Citation | 42 W.Va. 384 |
| Parties | Goff v. Price et cd.5 |
| Court | West Virginia Supreme Court |
l. Equity Pleading General Relief Specific Relief.
Where a bill asks certain specific relief, and contains no prayer
for general relief, no other than such specific relief can be grant- 2. Equity Pleading General, Relief Specific Relief.
An answer, under section 35, chapter 125, Code, containing new matter for affirmative relief, praying certain relief, without prayer for general relief, will not warrant any relief not prayed for by it.
3. Equity Pleading Equity Practice General Replication Special Replication Answer.
The general rule of chancery practice is that an answer to a bill can only pray for dismissal of the bill, and not for affirmative relief on new matter presented by it, that being a proper subject for a cross-bill; but, under our practice, there are certain exceptions to this, outside of answers under section 35, chapter 125, Code, and in such eases no special reply to such ordinary answer is necessary, and its matter is not taken for true under general replication. In such cases, relief may be given the defendant on such ordinary answer against the plaintiff, but not against a co-defendant. To affect him, resort must be had to a cross-bill, or an answer, under section 35, chapter 125, Code, in lieu of a cross-bill.
4. Equity Pleading New Matter Answer.
An answer, under section 35, chapter 125, Code, containing new matter constituting a claim for affirmative relief, may be taken for confessed as against the plaintiff, but not against another defendant, without service of process to reply to it.
5. Equity Pleading Answer New Matter.
Such an answer, after responding to the bill, must state the new matter for affirmative relief with the same particularity and certainty, under the principles of equity pleading, as is required in a formal cross-bill, stating a case for equitable relief touching the matter in question in the bill, and not one foreign to it, and must name persons interested in such new matter, and make them parties, by calling for process against them, and must contain prayer for relief as a cross-bill would in the case.
G. Liens by Deed Debts Secured by Deed of Trust, etc.
A deed for land, retaining a lien for purchase money, or mortgage, or deed of trust, must in some way describe the debt, so as to identify it. Literal accuracy is not required. Substantial accuracy, reasonably describing, is sufficient. The description of the charge must be correct as far as it goes, so as to inform creditors and subsequent purchasers what amount is charged on the land, and must be full enough to direct attention to the sources of correct information, and be such a description of the debt as not to mislead or deceive as to its nature and amount.
C. H. Scott for appellants, cited 26 W. Ya. 378, 379.
J. B. Ward and L. 1). Strader for appellees, cited Sto. Eq. PI. §§ 389, etc.; Code, c. 125, s. 35.
A. A. Goft" filed her bill in equity, setting up that E. E. Mouse and B. L. Mouse had conveyed land to Israel Price, taking for the purchase money live notes, retaining a lien for them, and that the Mouses had assigned one of them to the plaintiff, and she prayed for the sale of the land to pay her note. She made Price and the two Mouses parties. The Mouses did not appear. Price filed an answer, alleging that the Mouses had pretended to him that the title was good, but it was in fact subject to a large lien, affecting his title in favor of Good, and asking a recission of the deed from the Mouses to him, and a cancellation of the notes. A decree was entered canceling the deed and notes, and requiring the Mouses to pay Goft the amount of the note they had assigned to her on Price, by reason of their liability as assignors; and then the Mouses filed a bill of review, asking the reversal of that decree, which, upon demurrer, was dismissed, and the Mouses appeal.
Could there be a decree in favor of Goff against the Mouses, upon the pleadings as they are, under the liability of the Mouses as assignors to Goff upon the cancellation of the deed and note? Such decree could not rest on the bill. This bill prayed no such relief, but asked only a sale of the land to pay the note. Had it asked the sale, or, on failure of such relief, then alternative relief against the Mouses, such relief would, perhaps, be warranted. And, indeed, on the facts the bill does contain, if it contained a prayer for general relief, such decree might be entered, but not without such special or general prayer. Vance Shoe Co. v. Ilaught, 41 W. Va. 275 (23 S. E. 553). Next, take Price's answer. The decree is sought to be based on it. But the demand of Goff against the Mouses was not a right in favor of Price, to be enforced by him, by answer or otherwise as he was a stranger to the contract of assignment; and therefore, had he asked such a decree by a proper prayer in his answer, it ought not to have been granted. But this answer contains no such effectual special prayer. After stating Price's defense, this answer prays the cancellation of the deed and notes, then adding, "and that, instead of plaintiff's following respondent for the amount of the note, she should be required to collect the same from his co-defendants." This does not ask a decree against the Mouses. We must not strain this clause to make Price ask what he had no right to ask. It only tells Goff to go against the Mouses. Now, an answer containing new matter calling for affirmative relief, whether against plaintiff or co-defendants, must have a prayer for such special relief. Harrison v. Brewster, 38 W. Va. 294 (18 S. E. 568); Middlcton v. Selby, 19 W. Va. 167. Therefore, the decree can not stand on that answer as one under the statute.
Another question is whether the matter of this answer is to he regarded in its nature as calling for a special reply under Code, c. 125, s. 35; for it is contended that, as such reply is wanting, the matter of the answer is taken for confessed against both plaintiff and the defendants Mouse, under section 36. This matter is that the Mouses represented falsely to Price that the title to the land was good and free of incumbrance, whereas it was under a lien. It struck me, on first impression, that this was mere matter of defense, available by ordinary answer before this statute, even though such answer called for recission of the contract or deed; for surely that matter could be used as a defense by ordinary answer, and the further relief of recission would be a mere incident, and not necessarily make the answer one to require a reply. And a search has led me to the case of Cunningham, v. Hedrick, 23 W. Va. 579, from which we may see that while such defense may be the subject of a cross bill, yet it could before the statute have been made by answer. And as, under that case, and Foulty v. Boar, 35 W. Va. 70 (12 S. E. 1096) and others, it is well settled that, where a defense could, under practice before that statute, be made by answer, no reply under the statute is necessary to an answer containing such matter, the allegations in Price's answer of the matters which are claimed to justify this decree could not be taken for confessed against the Mouses, even without a general replication, as a co-defendant can not put in a general replication, because the matter of an ordinary answer is not taken for true against him, and never was evidence against him. It is only an answer containing new matter calling for affirmative relief that is taken for true, under the statute, against a co-defendant, if no special reply is filed. Another reason why no special reply was called for is that the answer contains no prayer for relief, and section 8 of syllabus in Mlddleton v. Selby, 19 W. Va 167, says that in such case it is improper to file a special reply. Hence this basis for the decree fails.
As to giving relief on an answer, the rule of practice as laid down everywhere, apart from statute provision, is that an answer can only pray for dismissal of the bill, and not for affirmative relief, and that, if any relief further is asked, it must be done by cross-bills. 1 Enc. PI. & Prac. 871. But this rule has often been departed from in Virginia, as shown in Cunningham v. Hedrick, supra; Bart. Ch. Prac. 304; 4 Minor, Inst. 1380; Adkins v. Edwards, 83 Va. 300 (2 S. E. 435); Cralle v. Cralle, 79 Va. 182; Sayers v. Wall, 26 Gratt. 354; Tate v. Vance, 27 Gratt. 571; Scott v. Rowland, 82 Va. 484 (4 8. E. 595). The true rule generally prevalent being that, for a defendant to obtain affirmative relief beyond dismissal of the bill, even against the plaintiff, he can only do so by cross-bill, there is stronger reason to say that one defendant can not have such relief against another defendant without such cross-bill; and I hardly think the Virginia cases, relaxing, in some instances, the general rule, would justify relief between defendants without cross-bill, unless it is proper as growing out of the pleading and proof between plaintiff and defendant. Thus the answer would justify the decree of cancellation as to Goff; but, even if Price could ask the decree against the Mouses, treatingthis answer as an ordinary answer, he could not ask that decree by such answer, but only by cross-bill under ordinary chancery practice, or a proper answer under the statute, and it is not, as above shown, good under the statute.
Upon this answer another question presents itself. Under section 35, chapter 125, Code, an answer containing such matter as calls for affirmative relief in favor of the party filing it is made the basis of relief, not only as between that defendant and the plaintiff, but as between that defendant and other defendants. Prior to this provision, relief could be decreed between co-defendants only when it was justified or called for by the pleading and proof between the plain- tiff and defendant, in the absence of a cross-bill....
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