McCloskey v. Barr

• Decision Date: 09 March 1889
• Citation: 38 F. 165
• Parties: McCLOSKEY et al. v. BARR et al.
• Court: U.S. District Court — Southern District of Ohio

38 F. 165

McCLOSKEY et al. v. BARR et al.

United States Circuit Court, S.D. Ohio, Western Division.

March 9, 1889

C. W Cowan, H. T. Fay, and Howard Ferris, for complainants.

Lincoln Stephans & Bateman, Harper, Coppock & Hammel, Henry Van Mater, Simrall & Mack, and E. P. Bradstreet, for defendants.

JACKSON J.

This cause is now before the court on the sufficiency of the pleas filed herein by Ed. A. Foy, William A. Blanchard, Henry Van Mater, and others, defendants, adopting the same, and agreeing to be bound by the action of the court thereon, to the second amended bill, filed by complainants November 7 1888. The case made and presented by said second amended bill is briefly this: The complainants allege that they, together with certain of the defendants other than those interposing said pleas, were the legal heirs of Mary Jane Barr, who was seised in fee in remainder of the 160 4-10 acres of land described in the pleadings, subject to the life-estate therein of one Maria Bigelow; that their said ancestor, the tenant in fee in remainder, departed this life intestate November 21, 1821, when said estate in remainder descended and became vested in them and the other heirs and descendants of said Mary Jane Barr (made parties defendant) as tenants in common; that the life-tenant, Maria Bigelow, died August 3 1860, when their right of possession and that of their co-tenants accrued, and that at the date of the accrual of their right of possession upon the termination of said life-estate several of the complainants, specially named, were under the disability of coverture and infancy. The bill seeks special discovery of the defendants, whether all of them, other than the Barr heirs and descendants, do not derive such title and possession as they respectively have through and under the life-tenant, Maria Bigelow, together with the dates at which they acquired such title and possession, and also for partition, and an account for rents. The above-named defendants file pleas in bar of the suit, joining therewith answers in support of the pleas. The pleas recite that they are filed by leave of the court first had and obtained, but there is no order of record granting such leave. The pleas of the several defendants are substantially the same, and allege:

'(1) That at the time of the bringing of this suit, and long prior thereto, this defendant was, and still is, the sole owner in fee-simple of the entire title of the following described premises, viz., (then setting out certain lots or parcels of land in Cincinnati.) (2) That at the time of the bringing of this suit, and long prior thereto, this defendant was, and still is, in the open, notorious, continuous, and exclusive possession of the said premises as the sole owner thereof, and claiming and holding adversely to the complainants and all the world. (3) He further says that the said complainants were, at the time of the bringing of this suit and long prior thereto, ousted and disseised and out of possession of said premises, and he says that complainants seek, by their second amended bill, to recover the possession of a portion of the said land, and to establish their title therein; wherefore he says that the relief sought by the said complainants' second amended bill it not of equitable cognizance, and that they have adequate remedy at law to recover possession, and establish their title, if any they have. (4) And this defendant further for plea saith that he is the sole owner and holder of the premises described in his first plea above, reference to which is hereby made part hereof; that said second amended bill is exhibited against this defendant and some two hundred other defendants in possession of distinct tracts or parcels of land included within the tract described in the second amended bill; that this defendant has no interest or claim to tracts held and owned by the other defendants, and the said other defendants have no claim to or interest in the tract held by this defendant described in the first plea aforesaid; and this defendant says that if his case is mixed up and joined with the case of the other defendants in possession he will be put to large expense, and great vexation and delay, by reason of the contention between the said complainants and the other defendants in possession, in which he has no interest, and from which he can derive no benefit. Wherefore he saith that the second amended bill is exhibited against him and the said other defendants for several distinct and independent matters and causes, which have no relation to each other, and in which he is in no way interested and concerned, and ought not to be implicated.'

Then, without 'waiving his said plea,' the defendant proceeds to answer so much of complainants' said amended bill as he deems material to make answer unto, and denies that complainants are seised in fee and entitled to the possession of an undivided one-fifth part or of any part of the real estate described in said amended bill or in the first plea; denies the defendant Barr heirs or descendants are seised in fee of an undivided one thirty-fifth part or any part of the real estate described in said amended bill or in the first plea of defendant; denies that the unknown heirs of Margaret Hattersley are seised in fee of an undivided one thirty-fifth part or of any part of the real estate described in the amended bill or in his first plea. The same denial is made as to other named defendants alleged in the bill to have an undivided one thirty-fifth part of the land described in said bill. He further denies that all of the defendants other than those specifically named above are seised in fee-simple in the bill or in his first plea, jointly, or in common, or in any way together; but avers that each of the said defendants in possession is the owner of and seised in possession and law severally of distinct parcels or tracts of land within the large tract described in said amended bill. He further denies that upon the death of the said Maria Bigelow the defendants, other than those above specifically named, or those under whom they claim, entered into possession of the real estate described in the said amended bill or in this defendant's first plea, as tenants in common with the complainants and the other defendants herein. 'Wherefore the defendant demands the judgment of this court whether he shall be compelled to answer complainants' said amended bill, and humbly prays to be dismissed with his reasonable costs. ' The pleas are properly certified to by counsel, and sworn to by the defendant. The complainants have set them down for hearing without making any reply thereto, which operates as an admission of all the facts therein alleged, which are well pleaded, for the purpose of determining whether any or either of them constitutes a sufficient answer to the suit. It is not usual, or in conformity with proper practice, for a defendant, without previous special leave of the court, to file several separate pleas, or to present several distinct and independent defenses in one plea to the suit, for the reason that the defense proper for a plea is such as reduced the cause or some distinct part of it to a single point or issue; the object of the plea being to save litigants the expense and trouble of going into the evidence, and a trial at large. In Mitf. & T. Eq. Pl. 381, it is said that--

'It is generally concurred that a plea ought not to contain more defenses than one; and, though a plea may be bad in part and not in the whole, and may accordingly be allowed in part and overruled in part, yet there does not appear any case in which two defenses offered by a plea have been separated, and one allowed as a bar.'

The reason for this rule is fully and clearly explained on pages 382 and 383 of the same work. The plea may consist of a variety of facts and circumstances, without being bad for duplicity or multifariousness, provided they furnish as their result one clear ground upon which the equity of the bill, or the part thereof pleaded to, may be disposed of. 1 Daniell Ch.Pr. 607; Story, Eq. Pl. § 654; Didier v. Davison, 2 Sandf.Ch. 61. In the present case the plea or pleas present four separate, distinct, and inconsistent defenses, viz.: (1) That the defendant was at the commencement of the suit, and still is, sole owner in fee-simple of the particular lots or parcels of land described; (2) that at the bringing of the suit he was, and still is, in the open, notorious, continuous, and exclusive possession thereof, claiming and holding adversely to complainants; (3) that complainants were, before and at the time of bringing their suit, ousted and disseised, and out of possession, and therefore their remedy is at law; and (4) that...