Greenthal v. Lincoln

• Decision Date: 21 February 1896
• Citation: 35 A. 266,67 Conn. 372
• Court: Connecticut Supreme Court
• Parties: GREENTHAL v. LINCOLN et al.

35 A. 266

67 Conn. 372

GREENTHAL

v. LINCOLN et al.

Supreme Court of Errors of Connecticut.

Feb. 21, 1896.

Appeal from superior court, New Haven county; George W. Wheeler, Judge.

Action by Robert Greenthal against Lincoln, Seyms & Co. and others. Judgment for defendants, and plaintiff appeals. Reversed.

James E. Russell, for appellant.

J. Gilbert Calhoun, for appellees.

BALDWIN, J. By Gen. St. §§ 501, 504, all transfers of property by any person in failing circumstances, with a view to insolvency, shall be void, which are not in writing, for the benefit of all his creditors, and lodged for record in the proper court of probate; but no transfer otherwise valid is to be thus made void, unless proceedings in insolvency are instituted in such court within 60 days. Section 2528 further provides that all fraudulent conveyances or contracts, "made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators, or assigns, to whom such debt or duty belongs." The effect of these statutes is to make such a conveyance as that under which the plaintiff claims, not absolutely void, but only voidable. A transfer of the kind described in section 501 is only voidable by proceedings in insolvency, and for the benefit of the insolvent estate. One of the kind described in section 2528 Is voidable only at the instance of creditors, or those who may represent them. The answer originally put in by the defendants was a general denial, but when they subsequently filed what they termed an "amended answer," which purported to be in itself a complete answer to the whole complaint, it took the place of the general denial, and operated as a withdrawal of that defense. A general denial is only permissible, under the practice act, when it is intended in good faith to controvert all the allegations of the complaint Gen. St. § 874. The defendants' amended answer did not deny, and therefore admitted, most of the plaintiff's averments. Practice Book, p. 16, rule 4, § 4. Our statutes formerly gave the defendant a right to plead, by special leave of the court, as many several matters by distinct pleas as he should think necessary for his defense. Gen. St. (Revision of 1875) p. 424, § 11. This provision was expressly repealed by the practice act. Practice Book, p. 8, § 29; Gen. St. (Revision of 1888) § 1015. Had it been retained in force, one of the main purposes of the new system of pleading would have been frustrated. The practice act distinctly abandoned the professed aim of the common law to bring every legal controversy to an issue upon some single, certain, and material point. Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 560, 29 Atl. 76. Instead of this, it was provided that no issue need be joined on a demurrer, and that the denial of any material allegation should constitute an issue of fact Practice Book, p. 17, § 12. Any number of issues might be raised by answer, but it must be in one and the same answer, though the defenses were separate. The object of the change was, in large part, to secure from the pleader admissions of the truth of whatever he knew to be true, or (having knowledge or information sufficient to form a belief) did not believe to be untrue, in the material allegations of the adverse party. Practice Book, pp. 16, 17, rule 4, §§ 4, 5, 7. There are few complaints in which all that is averred can be honestly denied. That in...