Warfield v. Gambrill , 1 G. & J. 503 ( 1829 )

Archer, J.

delivered the opinion of the court.

The complainant seeks a partition of the tracts of land described in the bill, alleging a seisin in seven-eights of said tracts, and that the respondent is in possession of, and exercising acts of ownership over the whole of the lands.

The answer of the respondent states that Augustine Gambrill, the father of the respondent, devised his dwelling plantation to his two sons, Richard and Augustine Gambrill, and to his five daughters; after which she states that by the intermarriage of three of her sisters, and the death of one of them, and by a sale from her brother Richard, to her brother Augustine Gambrill, she considered that she became entitled to one-third of the 'land, apd her brother Augustine Gambrill, to two-thirds thereof. '

The cause is set down for hearing, and an interlocutory decree passes at July term, 1826, for partition, and commissioners are accordingly appointed to make partition. Upon the return of the commissioners at October term, 1826, the Chancellor dismissed the complainants bill, from which decree this appeal has been taken.

We do not feel ourselves called upon to express any opinion on the will of Augustine Gambrill, but shall decide the cause upon the -bill and answer.

The bill alleges a seisin of seven undivided eighth parts of this land, and the seisin, should have been proved by the complainant, or admitted by the answer. The complainant relying upon the answer exhibited no proof of seisin, but set the cause down for hearing upon the coming in of the answer.

By a reference to the answer it will be found to contain no admission of - any allegation in the complainants bill, except her possession of the land. Her answer is very defective and inartificial; and it is only indeed by inference that we can arrive at the conclusion, that she is speaking of the lands referred to in the bill, but considering, what is' only a matter of inference, as certain, and that the lands of which she speaks, are the lands of which the complainant seeks partition, there is' not only no admission of right or. title in the complainant but an averment of title ia herself, and Augustine Gambrill her brother. In this stage of the cause the complainant was called on for proof of his allegations, and exhibiting none, but setting the cause down for hearing, his bill'was rightfully dismissed by the Chancellor.

But supposing there is no denial of title in the answer, and that the material allegation in the bill, the seisin of the complainant is unanswered, this is clearly no admission of any unanswered fact. Chancellor Hanson, 2 Harr. & Johns, 301, says, if any material matter charged in the éomplainants bill, has been neither denied nor admitted by the answers, it stands on the hearing of the cause for naught, and in 6 Cranch, 51, Young vs. Grundy, Ch. J. Marshall, in delivering the opinion of the court, says, “that if the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing. Upon a question of dissolution of an injunction, they are to be taken as true.” A respondent submitting to answer must answer fully, but if the answer be defective, and insufficient to meet the allegations and interrogatories of the bill, the complainant desiring a fuller response must except to the answer. If he do not he cannot rely on the silence of the respondent in relation to any material allegation, hut must prove it.

DECREE AFFIRMED.