Watson v. Ruderman

Citation66 A. 515,79 Conn. 687
CourtSupreme Court of Connecticut
Decision Date01 May 1907
PartiesWATSON v. RUDERMAN.

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Action by David F. Watson against John Ruderman. From an order sustaining a demurrer to the reply, plaintiff appeals. No error.

The complaint is one framed in the ordinary form of a foreclosure of a mortgage of lands. The defendant is described as the maker of the note and mortgage. The defendant pleaded infancy, alleging that at the time the note and mortgage were made by him, to wit, January 18, 1906, he was only 19 years of age. The plaintiff in his reply admitted these allegations of infancy, and then proceeded under the introduction "by way of equitable relief" to reaffirm by reference the allegations of the complaint, and further to allege, in substance, that on said January 18th the plaintiff sold and conveyed to the defendant the equity of redemption in the described premises, in consideration of the assumption by the defendant of the mortgage of $600 already upon the property, $150 then paid in cash, and a note for $200 then made and delivered to the plaintiff by the defendant, which note was secured by a mortgage of said equity, also then executed and delivered by the defendant, said note and mortgage being those in suit; that the defendant has paid only $26 on account of said note, or of the prior assumed incumbrance; that there is located upon said premises a building since occupied by the defendant for the conduct of business; that the use of said property is reasonably worth $10 per month, and that the plaintiff is ready and willing to pay into court for the use of the defendant so much of the amount the defendant has paid as the court should find ought equitably to be repaid to him. The plaintiff thereupon claimed the following relief: "(1) A decree affirming said purchase, payment, mortgage, and note, and a judgment of foreclosure; or (2) a decree disaffirming said purchase, payment, mortgage, and note; and (3) a judgment fixing the amount which the defendant is equitably entitled to have paid into court for his use on account of said payment; and (4) a decree or judgment for a reconveyance of said property to the plaintiff, or otherwise vesting title thereto in him; (5) such other and further appropriate relief as to equity may appertain." The defendant thereupon demurred to said prayers for relief, for the reason that the facts stated did not entitle the plaintiff to the relief sought. This demurrer was sustained, and Judgment for the defendant thereafter followed in due course.

William H. O'Hara, for appellant. Henry Greenstein, for appellee.

PRENTICE, J. (after stating the facts). The plaintiff contends that the court's action in sustaining the demurrer to the reply was erroneous for reasons which in the brief of counsel are resolved into three, to wit: First, because, for the purposes of the demurrer, the defendant must be regarded as having waived the defense of infancy, since it was not therein specifically appealed to; second, because a foreclosure might have been properly awarded upon the facts set up; and, third, because equity might grant relief, either by compelling the infant defendant to elect to affirm or disaffirm the transaction, or by making such election for him and thereupon establishing what had in form been done, or, as the case might be, setting the same aside and restoring the parties to their former status.

The reply, in so far as it sets up facts for the purpose of claiming and claimed the relief demurred to, was not a proper pleading. The office of a reply is to meet matter averred in the answer. It may not be used, as here, to set up facts for the purpose of obtaining distinct affirmative relief. Prayers for relief have no place, save in a complaint, cross-complaint or answer embodying a counterclaim. When the plaintiff discovered that he desired relief not already prayed for, he should have amended his complaint to embody it and such facts, in addition to those already therein, as were deemed pertinent. Instead of pursuing this course, which would have presented a complaint disclosing the defendant's legal incapacity to enter into the contracts and conveyances set up, he sought to avoid in his reply the effect of that incapacity, which had been asserted and admitted, by an appeal for distinct and affirmative equitable relief. To this and certain facts, in part new to the case, were stated in a form suggestive of an equitable counterclaim, and such relief as was conceived to be appropriate to the facts of the case, including the admitted infancy, prayed for. Under such circumstances the defendant was in fairness entitled to have the appropriateness of the prayers for relief contained in the reply put to the test of his demurrer, with a regard, not only for the facts alleged in the reply, but also for the other fact to which the reply was specially addressed, and without which the prayers had no pertinence. The plaintiff's first reason for claiming error, which it is to be noticed was not sufficiently assigned in the reasons of appeal, must therefore, for a double reason, fail.

The plaintiff's argument in support of his second contention, that a foreclosure might have been granted, establishes nothing more than that a minor may be foreclosed. This is, of course, true; but the effort here is, not only to foreclose a minor, but to do so upon a note and mortgage executed by such minor. The contract embodied in the note and the conveyance of title effectuated by the mortgage were alike voidable. The defendant, by the accepted rule of public policy, was entitled to disaffirm them. This disaffirmance might be exercised after the attainment of majority—a time still in the futue—and in so far as the mortgage was concerned could not by the current of authority be sooner exercised. Kline v. Beebe, 6 Conn. 494, 503-505; ...

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7 cases
  • Mackey v. Dobrucki
    • United States
    • Supreme Court of Connecticut
    • May 16, 1933
    ...in the answer. It should not be used to set up facts for the purpose of obtaining distinctive affirmative relief. Watson v. Ruderman, 79 Conn. 687, 689, 66 A. There is no error. In this opinion the other Judges concurred. ...
  • Creer v. Active Auto. Exch., Inc.
    • United States
    • Supreme Court of Connecticut
    • July 27, 1923
    ...citations, but will consider such of them as seems necessary in the following discussion. Most of them are cited in Watson v. Ruderman, 79 Conn. 687, 66 A. 515. prior to his death in 1847, Chancellor Kent completed his work upon the sixth edition of his Commentaries, and the statements of l......
  • Frogge v. Shugrue
    • United States
    • Supreme Court of Connecticut
    • May 8, 1940
    ...A cause of action not stated in the complaint may not be interjected into the case through the medium of a reply. Watson v. Ruderman, 79 Conn. 687, 689, 66 A. 515; Mackey v. Dobrucki, 116 Conn. 666, 671, 166 A. 393. Upon this record the sole ground upon which to predicate a verdict for the ......
  • Frogge v. Shugrue
    • United States
    • Supreme Court of Connecticut
    • May 8, 1940
    ......A cause of action not stated in the. complaint may not be interjected into the case through the. medium of a reply. Watson v. Ruderman, 79 Conn. 687,. 689, 66 A. 515; Mackey v. Dobrucki, 116 Conn. 666,. 671, 166 A. 393. Upon this record the sole ground upon which. to ......
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