Ledbetter v. Ledbetter

• Decision Date: 31 October 1885
• Parties: LEDBETTER, Appellant, v. LEDBETTER.
• Court: Missouri Supreme Court

88 Mo. 60

LEDBETTER, Appellant,

v.LEDBETTER.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Barton Circuit Court.--HON. CHARLES G. BURTON, Judge.

AFFIRMED.

Robinson & Harkless for appellant.

(1) The answer of the defendant very evidently proceeds on the theory that plaintiff did not have a regular chain of title, but that C. H. Brown acquired his deed from J. C Ledbetter, and J. F. Ledbetter from C. H. Brown, with full notice of defendants' equity, and in fraud of their rights, and under plaintiff's general denial, the issue presented was as to defendants' equity, and it devolved upon them to prove it. Bliss Code Pleading, sec. 340. Again, the answer, although containing in the first count a general denial, in the second count proceeds with a general confession of plaintiff's legal title, and an avoidance on the ground of fraud. 1 Chitty Pleadings (11 Am. Ed.) 526; Stephen's Pleadings (8 Am. Ed.) 200; Bliss Code Pleadings, sec. 340.D. B. Van Syckel for respondent.

The answer contains two consistent defences: 1st, general denial; 2d, an equitable defence. The first answer, or general denial, casts upon the plaintiff the onus probandi as to the title and also the right to immediate possession, as well as every material allegation of his petition or complaint, regardless of what may be contained in the second answer of the defendant in this action. Sturdevant v. Rehard et al., 60 Mo. 152. But defendant's second defence, neither as a whole nor as a part, admits the legal title to be in the plaintiff; but distinctly avers the defendant has been in possession since 1878; and besides that, she had the legal title as cestui que trust since 1874. 23 Mo. 457; 36 Mo. 523. The answer expressly denies that the legal title is in plaintiff by stating that the “pretended title” of C. H. Brown was attempted to be conveyed to J. F. Ledbetter.

BLACK, J.

This is an action of ejectment commenced in 1881. On the trial before the court without a jury, it was admitted that J. C. Ledbetter was the common source of title, and that defendant was then, and had been, since April, 1878, in possession of the land in dispute. The plaintiff offered no evidence. The court ruled that plaintiff was not entitled to recover, and accordingly gave judgment for the defendant, from which plaintiff appealed.

The answer contains two defences: 1st, a general denial; 2d, an equitable defence. The plaintiff's theory is that the admission taken in connection with the pleadings as a whole, made out his case. The defendant, even in an action of ejectment, may plead as many defences as he may have, legal or equitable, or both. The only limit is that by the practice act they must be consistent. Ordinarily, a statement of new facts showing a non-liability, impliedly at least admits a liability, but for such new facts. Hence, it is often said an answer setting up new matter by way of defence should confess and avoid the plaintiff's cause of action. State to use, etc., v. Williams, 48 Mo. 212; 1 Chitty Plead. (16 Am. Ed.) 551. But the confession is not necessarily an absolute one. It need not be made in terms. It is often only implied from the nature of the defence, or assumed for the purpose of the particular defence. Bliss Code Pleadings, sec. 341. Traverses and answers in avoidance may go together where not inconsistent. In Hopper v. Hopper, 11 Paige, 46, it is said the defendant “cannot set up two defences which are so inconsistent with each other that if the matters constituting one defence are truly stated, the matters upon which the other defence is attempted to be based must necessarily be untrue in point of fact. But the defendant may deny the allegations upon which the plaintiff's title to relief is founded, and may, at the same time, set up in his answer any other matters not wholly inconsistent with such denial.” In Nelson v. Brodhack, 44 Mo. 599, in...