Wellborn v. Tiller , 10 Ala. 305 ( 1846 )

GOLDTHWAITE, J.

1. This bill is certainly exceptionable, as it contains two distinct matters, which have no necessary connection with each other. It is evident that none of the defendants except McMillan, are interested, whether the contract of purchase between him and Tiller stands valid, or is rescinded. So too, the complainants, Gordon & McAl-lister, have no interest in this inquiry. On the other branch of the case, with relation to the note subsequently given to Gor-man, McMillan seems to be entirely disconnected. Under these circumstances, if a demurrer had been interposed on account, of the bill being multifarious, the form of the bill must hav.e been amended or dismissed.

2. This objection, however, was not taken in the court below; it is true a general demurrer was put in by Well-born, in his answer, but no special causes being assigned, it has the effect only, to turn the enquiry upon the equities of the bill. The 30th rule, for the regulation of practice in chancery, directs that all demurrers shall state the matters of objection; [Clay’s Digest. 616, § 30,] but this is no more than an iteration of the rule which previously governed the practice of all equity courts. [Mitford, 214; Story’s Eq. PL § 455.] As the defendants, therefore submitted to go on to the hearing, without specifically raising this objection, the court ought not now to notice it, nor indeed would it have been adverted to, but for the necessity which there is to dis-linguish one part of the bill from the other, in the application: of the admissions of the answers.

3. It will be seen that McMillan distinctly admits the contract with Tiller, and asserts that he was able and willing to make good titles to the Irwinton lots. Indeed, he goes further, and asserts that a complete title actually vested in Tiller, derived from himself. The charge ascertained from the entire bill is, that McMillan falsely and fraudulently represented he was able to make a good fee simple title, and that Tiller, confiding in his promises to do so, conveyed the land. This representation is not denied by McMillan, but is met by the assertion, as before stated, of an ability to convey. This, strictly speaking, is irresponsive matter, and it was his business to support the assertion by proof. None is shown, but on the contrary, it is established that other persons are in possession of the lots pretended to be sold by McMillan, who claim under titles derived from the proprietors. We think there is no distinction, in principle, between the case here, and that of Younge v. Harris, 2 Ala. Rep. 109; and therefore the decree is correct in directing a rescisión of the contract between McMillan and Tiller.

4. The defence to the $750 note, rests upon the allegations of the bill, the admissions in the answers of the defendants Wellborn and Grimes, and the pro confesso against Gorman. The bill asserts that Gorman represented that McMillan had conveyed the title obtained from Tiller to Wellborn, Grimes, and himself. Wellborn, in effect, admits that such a representation was made, when he asserts that “ the same title made by Tiller to McMillan, was conveyed by himself, Gor-man and Grimes to Tiller.” Grimes asserts that he, with the other defendants, took the lands from McMillan, as a der-nier resort, to secure them against liabilities as sureties for him, and that they gave Tiller one-half of the lands, and sold him the other half. How there could be either a gift or a sale, without the assertion of title, is difficult to conceive, and certainly is not explained. It is not the proper course of evidence for any one to establish a negative, unless the affirmative is a presumption of law, and it was incumbent on these parties to show that McMillan had invested them with the title, the representation of which induced Tiller to give his note as a compromise. There is no question as to the rule of law, that one may bind himself by the compromise of a doubtful or even bad claim. [Standifer v. Standifer, 1 Stewart, 532.] But a compromise induced by a false representation, is no more binding than a contract under similar circumstances.

5. The complainants do not pretend that a defence at law, would have been ineffectual, but they assign as an excuse, for not making it there, that they were ignorant of the falsity of the representations which induced the giving of the note. The representations being admitted, and the means of proving their truth being entirely within the control of the defendants, it was incumbent on them to shew them to be true, or if otherwise, that the complainants were advised of their falsity previous to the rendition of judgment against them. The rule is, that chancery will not relieve against a judgment at law, unless the defendant was ignorant of the fact in question, pending the suit; or unless he was prevented from availing himself of the defence, by fraud or accident, or the act of the opposite party, unmixed with fault or negligence on his part. [Mock v. Cundiff, 6 Porter, 24; French v. Garner, 7 ib. 549.] Here, however, the giving of the note was induced by the representation of the party, which he does now attempt to support. Tiller acted upon this representation, and it is fair to presume a continuation of his confidence in its truth, until the contrary is shewn by the opposite party. This not being made apparent, the chancellor correctly visited the consequences of the representation upon those who made it.

6. It is supposed no decree ought to have been rendered against Gorman, as there is no proof on the part of this case, affecting him. Without examining into the question whether the admissions of the other persons, who are jointly parties to the judgment, as plaintiffs with Gorman, we place our answer to this objection on the ground, that he is concluded by the pro confesso. The regularity of the decree is not questioned by the errors assigned, and therefore it is unnecessary to examine whether the service was personal, or was perfected against him as a non-resident, by publication, neither of which matters appear in the transcript. In either event, however, if the service was perfected, the effect of the pro confesso is the same. The act of 1841, [Clay’s Digest,, 254, § 58,] provides for the ease when the service is personal; and the decision in Arnold v. Shepperd, [6 Ala. Rep. 299] shews that proof is unnecessary, of the allegations of the bill, when it is taken as confessed against an absent defendant properly before the court.

Our conclusion therefore is, that there is no error in the decree. Decree affirmed-.