John E. Waterman v. Abbie E. Moody And Henry H. Rogers
| Decision Date | 12 February 1918 |
| Parties | JOHN E. WATERMAN v. ABBIE E. MOODY AND HENRY H. ROGERS |
| Court | Vermont Supreme Court |
May Term, 1917.
APPEAL IN CHANCERY. Heard on issues presented by the pleadings facts found by the chancellor and defendant's exceptions thereto, in vacation after the June Term, 1916, Windsor County, Fish, Chancellor. Decree for plaintiff. Defendants appealed. The opinion states the case.
Decree affirmed and cause remanded.
March M. Wilson for plaintiff.
Charles Batchelder for defendants.
Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.
The plaintiff and the defendant Abbie E. Moody occupy adjoining farms in Royalton. The defendant Henry H Rogers resides with and assists the said Abbie E. in managing her farm. The plaintiff's farm is sometimes referred to as the Lyman farm and defendants' as the Fay farm. A wood lot connected with defendants' farm is so situated that it can be reached most conveniently by crossing plaintiff's meadow land.
In his original bill the plaintiff seeks to have the defendants enjoined from crossing his land in going to and from said wood lot. By a joint and several answer and cross bill the defendants set up a prescriptive right of way across plaintiff's land and ask that he be enjoined from interfering therewith. Issue was joined on the bill, answer and cross bill and the case came on for hearing before the chancellor. At the opening of the hearing i the defendant Abbie E, had leave to file an amendment to the answer and cross bill in which she averred that, since the filing of the original answer and cross bill, she had acquired by purchase and conveyance from one Denison B. Woodward an undivided interest in the premises occupied by the plaintiff which entitled her to the enjoyment of said premises in common with the other joint owners, and she asked that her title thereto be confirmed. The chancellor proceeded to hear the evidence relating to the right of way, reserving to the plaintiff the right to answer the amended pleadings. Later the plaintiff filed papers entitled "answer to amendment to cross bill" and "supplemental bill." In the former he reaffirmed his statement as to the title and ownership of the farm and denied the allegations of the amended cross bill, except that he acknowledged information and belief that Abbie E. had obtained and placed on record a quitclaim deed from said Woodward purporting to convey some interest in the premises. In the supplemental bill he alleged that the defendant Abbie E. now claims to be the owner in fee of an undivided half interest in the Lyman farm; that she had obtained and placed on record a quitclaim deed from one Denison B. Woodward, son and sole heir at law of Charles H. Woodward, purporting to convey such interest; that she has no interest in said farm, notwithstanding said deed, for the reason that said Woodward had no interest therein at the time of the conveyance; and that said deed is a cloud upon his title. The bill sets out in detail the record title of the farm which shows that the title of record to an undivided half interest was at one time in Dudley C. Denison and to the other half in his son-in-law, Charles H. Woodward. It is further alleged that said Denison subsequently conveyed the whole of said farm by warranty deed to the plaintiff's father, Robert Waterman, that plaintiff believes that said Charles H. Woodward took his deed of a half of said farm in behalf and as agent of said Denison, at his request and for his benefit; that said Denison conveyed the farm to plaintiff's father with the full knowledge and approval of said Woodward; that it was agreed that said Woodward should execute necessary conveyances to give said Denison and his grantee full and perfect title, which the said Woodward did execute, but through some accident or mistake such conveyance was either not fully perfected or was not duly recorded. Further circumstances are alleged tending to support a presumptive grant from Woodward to Denison. The prayer of the bill is that the defendant Abbie E. be enjoined from asserting any right, title or interest in and to said farm; that the deed from the said Denison B. Woodward to the defendant be decreed of no effect; and that the plaintiff's title be confirmed and validated against the defendant Abbie E., and all persons claiming under her.
The defendants filed an answer to the "supplemental bill," craving the benefit of a demurrer to certain allegations thereof and, on certain grounds, to the whole bill. The cause coming on for further hearing, the chancellor overruled the demurrer, reserving the benefit thereof to the defendants at the final hearing. The defendants excepted to certain rulings of the chancellor during the trial, to certain findings of the chancellor as not being supported by the evidence and to the refusal of the chancellor to find in accordance with certain requests. On the facts found the chancellor decreed that the defendant Abbie E. has no right of way across plaintiff's land and perpetually enjoined the defendants, their servants and agents, from crossing the same; that the deed from Denison B. Woodward to the defendant Abbie E. is of no effect and shall be held for nothing, and that as against the said Abbie E. and those claiming under her the plaintiff's title to said farm be established and confirmed; and that the defendants pay the plaintiff fifteen dollars damages for the wrongful use of his land under the claimed right of way. The case is here on defendants' appeal.
The points of defendants' demurrer have been argued in detail and at considerable length, but it will not be necessary to treat the questions seriatim. As to twelve of the thirteen points of special demurrer the defendants answered, either by admitting or denying the allegations of the bill or alleging want of knowledge and putting plaintiff to his proof, and at the same time set out special matters by way of demurrer, craving the same benefit thereof as though they had formally demurred. If we treat such claim of special matter as a demurrer, it does not avail the defendants. They could not at the same time both answer and demur to the same matter. The regular modes of defence to a bill are disclaimer, demurrer, plea or answer. It is not essential that the entire bill be met by the same mode of defence. Thus, a defendant may demur as to part, plead as to part, disclaim as to part and answer the residue. Chan. Rule 14; 2 Dan. Ch. Pr. 349; 1 Whit. Eq. Pr. § 213. Where such course is adopted it is essential that the pleading designate with precision the portion of the bill to which it is intended to apply and care should be taken not to cover any portion by two modes of defence, the general rule being that one may not at the same time demur and plead to, or demur and answer the same matter. See 16 Cyc. 259 where the cases are collected. With us the general rule has certain modifications. No demurrer is to be held bad because the answer extends to some part of the matter that is covered by the demurrer. Chan. Rule 19. A defendant may insist in his answer on any special matter that goes to the merits of the bill with the same benefit as if he had formally demurred to the bill, (Chan. Rule 15), in which case the demurrer is for consideration as if it stood alone, (Holt v. Daniels, 61 Vt. 89, 17 A. 786), and must be brought forward for hearing before the case is heard on its merits, otherwise it is waived. State v. Massey, 72 Vt. 210, 214, 47 A. 834. But this rule does not contemplate the joining of inconsistent pleadings except such as go to the merits of the whole bill. With this exception there must be no overlapping of defences; and, if a defendant answers a part of the bill and then demurs to the same matter, his answer will overrule his demurrer. Holt v. Daniels, 61 Vt. 89, 93, 17 A. 786; Wade v. Pulsifer, 54 Vt. 45, 71; 16 Cyc. 280.
The remaining instance of special demurrer challenges allegations that the plaintiff and his immediate predecessor in title made extensive improvements and additions to the premises, cut wood and lumber and paid all the taxes assessed thereon, on the ground that by so doing the plaintiff has acquired no right to deny the title of the defendant Abbie E., to an undivided half of said farm. It is argued that the facts here alleged are not inconsistent with occupation in the right of his co-tenant and do not entitle him on that account to lay claim to an ouster. But the supplemental bill is not based upon the theory of an ouster alone, but as well upon that of a presumptive grant, vesting the whole title in plaintiff's grantor; and the questioned allegations are but part of many circumstances alleged as the basis of an inference that Denison, prior to his deed to plaintiff's father, became the sole owner of the premises. All the circumstances alleged taken together are sufficient to afford the basis of a presumption of a grant, and as well to show an ouster of defendant Abbie E.'s grantor such as in the lapse of time would ripen into title by adverse possession. See Townsend v. Downer's Est., 32 Vt. 183, 211.
The defendants conclude their answer with the claim that the major portion of the supplemental bill consists of statements tending to establish that plaintiff is the owner of an undivided half of the premises by deed and of the other half by prescription, which, considered in connection with the allegations in his original bill, shows an attempt to make a new bill, based on different grounds as to title; and further that, though all the plaintiff therein alleges be true, he has an adequate remedy at law; and they crave the same benefit thereof as though they had formally demurred. Treating this, as counsel have done, as a demurre...
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