Bell v. Woodward , 42 N.H. 181 ( 1860 )

Bell, C. J.

The objection of multifariousness, where it appears on the face of the bill itself, can be taken only by demurrer. If no demurrer is filed, the objection is waived, and can not be insisted upon at the hearing on plea or answer; but where the objection is not apparent on the bill, but is introduced and shown by plea or answer, it must of course be open to the defendant on the plea or answer. Abbot v. Johnson, 32 N. H. 9; Dan. Ch. Pr. 350, 396.

On the bill in this ease this objection can not be sustained. In a bill for foreclosure all parties interested in the property, whose rights may be affected by the decree, are properly made parties. Haines v. Beach, 8 Johns. Oh. 459. The defendant, James Woodward, could not suffer a decree of foreclosure of the whole property alleged to be mortgaged to pass, unless proper provision was made for the payment or allowance of his earlier mortgage upon part of it. It was, therefore, essential for the plaintiffs, in order to entitle themselves to a foreclosure, to offer to pay, and to ask leave to pay that mortgage. It could be no subject of complaint that proper allegations, to show the necessity of this step, were introduced into the bill; nor that Joshua Woodward had no interest in the matter of the redemption of the Goss mortgage. When the object of a bill is single (as in this case, to obtain a foreclosure of their mortgages), to establish and obtain relief for one claim, in which all the defendants may be interested, it is not multifarious, although the defendants may have separate and distinct interests. Nan. Ch. Pr. 392, 386 ; Bugbee v. Sargent, 23 Me. 269; Brinkerhoff v. Brown, 6 Johns. Ch. 156, 157; Boyd v. Hoyt, 5 Paige 65; Dimmock v. Bigsby, 20 Pick. 377; Cornwell v. Lee, 14 Conn. 524; Mix v. Hotchkiss, 14 Conn. 32. No demurrer would lie to the bill, therefore, because it was there distinctly alleged that the mortgages, under which the plaintiffs claim, included the lands conveyed by the Goss mortgage.

The defendants then were driven to their plea to avail themselves of the fact that the bill really includes, if their plea is true, two distinct causes of action entirely unconnected and separate, and which can not be rightfully united in one bill.

By their plea they allege that the mortgages, under which alone the plaintiffs claim, do not include the land conveyed in the Goss mortgage ; and, therefore, the bill, by seeking redemption of that mortgage, and a foreclosure of the moi’tgage to Bell, is for matters not of the same nature, having no connection with each other, and to which the two defendants ought not to be required to answer by one bill.

Now, where the plaintiff’s right to the relief or discovery he seeks depends on a single point, the defendant, instead of answering all the allegations of the bill, may insist on the fact which he relies on as a bar, or deny some fact alleged in the bill, which is essential to the maintenance of the plaintiff’s claim. He may thus narrow the investigation, and save the expense of evidence, as to all the other matters made material by the bill, or which might be made so by the answer. Story’s Eq. PI., sec. 652.

As the right to redeem the previous mortgage depends on the' fact that part of the property is included in the mortgage to Bell, and as the only connection between the foreclosure of the Bell mortgage and the redemption of the Goss mortgage is found in that fact, a denial of that essential fact, properly pleaded and supported by evidence, must be fatal to the bill. Story’s Eq. PL, sec. 271; Boyd v. Hoyt, 5 Paige 79.

The principal question remaining is, whether the plea is well pleaded.

The objection of duplicity, which is suggested in the argument, does not seem to us well founded. The object of the plea is to show that the bill is in fact multifarious, by denying the only fact which constitutes a connection between the two subjects of the bill — the proposed redemption of one mortgage, and the foreclosure of the others. It is a single point.

If the plea was designed, as it might have been, to bar so much of the bill only as looks to the redemption, by denying the right of the plaintiffs to redeem the Goss mortgage, and by contesting the only title under which they claim a right to interfere, and equally where it is pleaded to the whole bill, the statement of the plea in relation to the distinct nature and want of connection of the claims in the bill, and the conclusion that they are, therefore, not bound to answer them in one bill, does not make the plea double.

Those statements set up no distinct ground of defense. They are of themselves no plea, and they must, as to that point, be regarded as mere redundancy and surplusage, which can not affect the residue of the plea. Story’s Eq. PI. 498 ; Beames’ PI. in Eq. 19, 20 ; Cooper’s Eq. PI. 226."

Neither is the plea argumentative. It is a direct denial of the fact that Bell’s mortgages included the Ladd farm, and, therefore, the claim to redeem and that to foreclose, were distinct and unconnected matters, which could not be included in one bill. It would have been argumentative, if it had merely stated facts, from which the court might draw the inference that the Ladd farm was not so included; as if the facts stated in the answer had been substituted for the denial in the plea.

We are unable to see any foundation for the idea that there is a demurrer implied in the plea, or that there could be any hazard in pleading to the facts stated. What remains beyond that, is the party’s conclusion of law from those facts, which is not debatable.

It seems, also, to be understood that the defendants rely in their pleas upon the fact that the plaintiffs had no title to the land covered by the Goss mortgage, as a defense to that part of the bill, omitting to make either answer or defense to the residue. If the plea should be regarded in that light, the fact denied is vital both to the right to redeem the Goss mortgage, and to include the Ladd farm in the foreclosure sought. . If well pleaded, it is decisive against both, and a good defense to so much of the bill.

The rule of pleading on this subject is thus laid down : If a plea is to the whole bill, but does not extend to or cover the whole, the plea is bad. Wedlake v. Hutton, 3 Anst. 636; Cooper’s Eq. PI. 229, 230; Story’s Eq. PI. 537, 659 ; Van Hook v. Whitlock, 3 Paige 418; Jarvis v. Palmer, 11 Paige 650.

No definite rule has been found, as to the manner in which it shall be stated in a plea to what part of the bill it is intended to apply. If it is understood that if the plea is not limited in its introductory part to a specified part of tlie bill, it will be understood to apply to the whole ; then in the present case, in the view we are now taking of it, the plea must be held bad, as it has no such limitation.

Where it appears from the plea itself, and the nature of the facts stated or denied, to -what it must be intended to apply, such an express limitation does not seem necessary; and here it is quite apparent that the fact denied must be intended as an answer only to so much of the bill as relates to the Goss mortgage.

But it is said in the books, that a plea may be bad in part, and not in the whole; as if a plea covers too much, the court will allow it to stand for the part which it properly covers. Dormer v. Fortescue, 2 Atk. 284; Beames’ PL in Eq. 44, 45 ; French v. Shotwell, 20 Johns. 668; S. C., 5 Johns. Ch. 555; Kirke v. White, 4 Wash. C. C. 595. The case of French v. Shotwell was one where the plea in its commencement applied to one point of the bill, yet the conclusion was in express terms to all the relief prayed by the bill; and Kent, Chan., says : “The plea was more extensive than the subject matter to which it related, but the remedy for such a defect is mild and liberal. It is only to order the plea to stand for so much of the bill as it properly covers, and no more, and to require the defendant to answer to the residue of the bill.”

But this is not our understanding of the effect of the plea. We regard it as a plea of multifariousness, pleaded to the whole bill, and designed to defeat it wholly, and, so far as the facts and nature of the plea are concerned, quite sufficient, if proved, to have that effect. Boyd v. Hoyt, 5 Paige 79; White v. White, 5 Gill 359.

It is said that the plea is overruled by the answer. The plea is what is called a negative plea, relying wholly upon a denial of essential allegations of the bill. To such pleas the general rule requires an answer to be filed, as was done in this case, subsidiary to the plea. Story’s Eq. PI. 511; Beames’ PI. in Eq. 34, 35; Hare on Disc. 34, 36; Crow v. Tyrrell, 2 Madd. 409; Drew v. Drew, 2 V. & B. 159; Sanders v. King, 6 Madd. 61; cited 2 S. & S. 274. The cases to which this rule does not apply are not numerous, and are not material here. Hpon the argument of a plea, every fact stated in the bill, and not denied by the answer, in support of the plea, must be taken to be true. Story’s Eq. PI. 511, 516. A plea which negatives the plaintiff’s title, though it may protect a defendant generally from answer and discovery, as to the subject of the bill, does not protect him from answer and discovery as to such matters charged as evidence of the plaintiff’s title, which is denied. Sanders v. King, 6 Madd. 61. Such a plea must be accompanied by an answer to the facts alleged in the bill, and those only, which, if true, would disprove and invalidate his plea, and to all the matters which are specially alleged as evidence of these facts. Hare on Disc. 34-36; Crow v. Tyrrell, 2 Madd. 409; Bellows v. Stone, 8 N. H. 287; Story’s Eq. PL 517, 527. The answer must be full and clear, or the court will intend the matter against the pleader. Story’s Eq. Pl. 527.

The answer must not extend beyond the facts and circumstances necessary to support the plea; for if any part of the bill is answered, which the defendant, by his plea, declines to answer, the plea will be overruled. Story’s Eq. PL 532; Mitf. Eq. Pl. by Jer. 299; Cattington v. Fletcher, 2 Atk. 155; Port Arlington v. Soulby, 6 Sim. 536; S. C., 7 Sim. 28; Hook v. Dorman, 1 S. & S. 227; Batton v. Gardner, 3 Paige 273; Furguson v. O’Hara, 1 Pet. C. C. 493.

A plea which concludes generally, whether the defendant ought to make answer to any matters contained in the bill in any other manner, is a plea to the whole bill. Allison v. Sharply, Hard. 98; Beames on Pleas, 47 ; and other cases cited in Welf. Eq. PL 302 (e). The plea here is pleaded in the most general form to the whole bill. It is not limited in the introduction nor in the close to any particular part of the bill; and the ground taken by the plaintiffs is, that when the plea goes to the whole bill, any answer whatever overrules the plea. Story’s Eq. PI. 537. While the defendants contend that they were bound to answer the matters alleged in the bill, which, if taken to be true, would disprove their plea, and those alleged in it, which are alleged as evidence bearing upon those points, and that the answer is strictly limited to those matters. And the difficulty is not in the answer, but in the form of the plea. If the plea had been limited in terms to such matters in the bill, as related to the relief and discovery prayed, bearing on the question whether the Ladd farm, which was mortgaged to Goss, was included or not in the mortgages to Bell, the case would have been clear, and the answer would have been properly drawn in support of the plea.

Instead of praying judgment, if the defendants ought to make any other or further answer to said bill, it should have added, except so much thereof as relates to the subject-matter of said plea; but there is no such, nor any other limitation of the plea.

Now the rule is, that “ in every case where an answer is required to accompany a plea, the plea should not cover the whole bill; but it should cover so much of the bill only as does not relate to the discovery of the particular facts to which the plaintiff has a right to require an answer. If it covers (excludes) such a discovery, it will be bad, because the defendant is bound to make that discovery.” Story’s Eq. PI. 686 ; Port Arlington v. Soulby, 6 Sim. 356; 2 Dan. Ch. Pr. 694, and note.

Port Arlington v. Soulby was a bill to cancel a bill of exchange, alleged to be a security for money won at play. The bill charged notice of the facts to the holder and indorsee, and that he had books and papers, &c., from which the truth would appear. The defendant pleaded to the whole bill, that he was a bona fide holder for value without notice, and put in an answer denying that the bill was indorsed after due, or that he had notice, but saying nothing of books, &c., and the plea was overruled for this defect. The plea was amended by leave, and the books, &c., denied, and the plea as amended was held bad, because the plea was to the whole bill; whereas it should have been to all the relief and all the discovery, except certain parts. Story’s Eq. PL, sec. 687; "Wigram on Disc. 162 et seq.

In Sauzer v. DeMeyer, 2 Paige 674, the defendants pleaded the statute of limitations to the bill, and at the same time put in an answer denying the whole equity thereof. It was held the defendant can not plead and answer to the same matter. If he answers as to -those matters, which, by his plea, he has declined to answer, he overrules his plea. And it was held that the plea in this case was overruled by the answer.

Within the rules and decisions thus stated, it seems that the plea in this case is overruled by the answer.

But we find the rule laid down that if a plea is bad in form only, but good in substance, as to the whole or any part of the bill, and was not pleaded in bad faith, it will be permitted to stand as part of the defendant’s answer, or the defendant may be permitted to insist on the same matter in his answer; Sauzer v. DeMeyer, 2 Paige 674; Jarvis v. Palmer, 11 Paige 650; Dormer v. Fortescue, 2 Atk. 284; or he may be permitted, and this seems to be the better course, to amend on terms. Newland’s Ch. Pr. 121; Brightley’s Eq. Jur. 471; Leaycraft v. Demsey, 4 Paige 126; Story’s Eq. PL, sec. 701, 894, 895; Dan. Ch. Pr.^804, 805.

The plea is disallowed, but with leave to amend.