Wynn v. Rosette , 66 Ala. 517 ( 1880 )

SOMEBYILLE, J.

This cause was submitted to the chancellor for hearing, on bill and answers, without testimony; the answers being under oath, as required by the bill. In such cases, whatever may have been the former practice on the subject, -the statute now provides, that the answers must be taken as true, only “so far as they are responsive to the allegations of the bill.” It is otherwise, however, where the complainant has waived the oath of the defendant to the answer. — Code (1876), § 8786. And as to matter which is not responsive, and is introduced by way of defense, and in avoidance of the case made by the bill, the answer is not to be esteemed as evidence.—Frazer v. Lee, 42 Ala. 25; Keiffer & Wife v. Barney, 31 Ala. 192.

The answer of Taliaferro sets up the defense on his part of being a bona fide purchaser of the lands in question, for a valuable consideration, without notice. If the complainant’s bill had been so framed, in its allegations and interrogatories, as that the answer was responsive to them in this particular, it would be taken as true, without other proof than the defendant’s own oath, as was the case in Fenno v. Sayre, 3 Ala. 458; 2 Lead. Cases in Eq. 124. But such is not the case. The bill only charges that Taliaferro claimed an interest in the land, the nature and character of which are not defined. The defense which he sets up, therefore, advances an affirmative proposition, not responsive to the bill, but in avoidance of the case made by it. The rules of pleading devolved on him the burden of proving that he was a purchaser for a valuable consideration. He was not bound, however, to go further, and prove negatively that he had no notice at the time of the purchase. The deed of conveyance from Ware to Rosette, and the one from Rosette to Taliaferro, each recite the payment of the purchase-money; and this' would shift on complainant the burden of proving that Taliaferro had notice of the equity claimed by him as the original vendot.—Buford v. McCormick, 57 Ala. 428; 2 Lead. Cases in Equity (Hare & Wall.), 125; Boone v. Chiles, 10 Peters, 177.

We think the answer of Taliaferro contained averments sufficient to have constituted him a bona fide purchaser for value, without notice; and they are made with proper accuracy, and without equivocation. The purchase-money is alleged to have been “five hundred dollars, cash paid”; and the deed, reciting its receipt on the date of the instrument, is made an exhibit, and prayed to be made a part of his answer; and he denies all notice of complainant’s equity, up to the day of the commencement of the suit.—Craft v. Russell, at the present term; 1 Brick. Dig. 718, § 1134, cases cited.

In submitting the cause, it was unnecessary to offer the exhibits to Taliaferro’s answer, as separate and distinct testimony from the answer itself. They were so referred to as to constitute part and parcel of the answer itself; and it must be presumed that they were proved viva voce, though the fact is not stated in the record. — Rule 17, Chancery Practice; Pierce v. Prude, 3 Ala. 65; 1 Brick. Dig. 749, §§ 1624, 1627.

The chancellor, under this view of the case, erred in dismissing complainant’s bill; and his decree is reversed, and the cause remanded.