Greenthal v. Lincoln, Seyms & Co. , 67 Conn. 372 ( 1896 )

Baldwin, J.

By General Statutes, §§501, 504, all transfers of property by any person in failing circumstances, with a view to insolvency, shall be void, which are not in writing for the benefit of all his creditors, and lodged for record in the proper Court of Probate; but no transfer otherwise valid is to be thus made void, unless proceedings in insolvency are instituted in such court within sixty days. Section 2528 further provides that all fraudulent conveyances or contracts “ made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators, or assigns, to whom such debt or duty belongs. ”

The effect of these statutes is to make such a conveyance as that under which the plaintiff claims, not absolutely void, but only voidable. A transfer of the kind described in § 501 is only voidable by proceedings in insolvency and for the benefit of the insolvent estate; one of the kind described in § 2528 is voidable only at the instance of creditors or those who may represent them.

The answer originally put in by the defendants was a general denial, but when they subsequently filed what they termed an “ amended answer,” which purported to be in itself a complete answer to the whole- complaint, it took the place of the general denial and operated as a. withdrawal of that defense.

A general denial is only permissible under the Practice Act when it is intended in good faith to controvert all the allegations of the complaint. General Statutes, § 874. The defendants’ amended answer did not deny and therefore admitted most of the plaintiff’s averments. Practice Book, p. 16, Rule IV., § 4.

Our statutes formerly gave the defendant a right to plead, by special leave of the court, as many several matters by distinct pleas as he should think necessary for his defense. General Statutes, Rev. of 1875, p. 424, § 11. This provision was expressly repealed by the Practice Act. Practice Book, p. 8, § 29; General Statutes, Rev. of 1888, § 1015. Had it been retained in force, one of the main purposes of the new system of pleading would have been frustrated. The Practice Act distinctly adandoned the professed aim of the common law to bring every legal controversy to an issue upon some single, certain, and material point. Graft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn., 551, 560. Instead of this, it was provided that no issue need be joined on a demurrer, and that the denial of any material allegation should constitute an issue of fact. Practice Book, p. 17, § 12. (Any number of issues might be raised by answer, but it must be in one and the same answer though the defenses were separate.) The object of the change was, in large part, to secure from the pleader admissions of the truth of whatever he knew to be true or (having knowledge or information sufficient to form a belief) did not believe to be untrue, in the material allegations of the adverse party. Practice Book, pp. 16, 17, Rule IV., §§ 4, 5, 7. There are few complaints in which all that is averred can be honestly denied. That in the present action was no exception to the rule, and the defendants, therefore, could not properly stand upon a general denial. They had taken the goods, and taken them forcibly from the plaintiff’s possession. The only questions were those of the lawfulness of his possession, and so of his title, when challenged by the creditors of his assignor. The amended answer was framed with this view, and such an amendment necessarily waived and superseded the general denial. It was, however, apparently based upon the erroneous théory that a conveyance within the terms of § 501 was ipso facto avoided, if insolvency proceedings were taken within sixty days after it was made. This not being the law, the defendants, who did not deny that they had forcibly taken the goods from the plaintiff’s possession, could only justify by showing that they were creditors of the assignor, and had attached the goods as his property. But if such facts were to be proved, it was necessary that they should be pleaded. Under the Practice Act, as fully as at common law, all pleadings must set up the material facts on which the pleader relies. General Statutes, §§ 874, 880; Practice Book, p. 16, Rule IV., § 6.

The finding of the Superior Court that the defendants were attaching creditors, being without the issue, cannot support the judgment.

It is contended by the defendants that by failing to demur to their answer, or to object to the evidence of the attachment and of the debt upon which it was founded, the plaintiff opened the door for the proof of those facts and cannot now be heard to complain of the effect which the court gave to them. There is no such rule of practice, nor could there be without subverting those principles on which the science of pleading rests. Every motion in arrest, or writ of error, grounded on the insufficiency of the pleadings to support a judgment, would be open to a similar objection. Todd v. Munson, 53 Conn., 579. The verity of records and the conclusiveness of judgments alike require that the facts determined should be those only which are within the issues joined.

The defendants’ answer was not a defective statement of title which a verdict or judgment might cure. It was not even a statement of a defective title. No title whatever was stated, and for aught that appeared in their pleadings, they might have been mere marauders, who seized and carried off . the plaintiff’s goods without claim of right.

There is error, and a new trial is ordered.

In this opinion the other judges concurred.