Chilson v. Thall ( 1888 )

Opinion,

Mr. Justice Williams :

The appellant is a man of advanced age and the appellee is his son-in-law. In 1880, the appellant feeling the infirmities of age, made a conveyance of his farm to his son-in-law Chilson, and Chilson undertook to support Thall and his wife during their natural lives. Within a year or two Thall felt that he had made a mistake and sought by bill in equity to procure the cancellation of his conveyance on the ground that it had been obtained by the stress of undue influence. He failed to show undue influence, his bill was dismissed, and a decree was made against him for costs amounting to over $400. About the time of the making of this decree a settlement was made between the parties by the terms of which Chilson was to pay Thall $150 per annum in quarterly payments of $37.50 each, in lieu of the support originally provided for. Chilson afterwards issued execution for costs which was returned nulla bona, and then presented the bill in this case asking the court to set off his judgment for costs upon the quarterly payments falling due to Thall until the whole sum with interest and costs of the present proceeding were fully paid. Thall failed to answer within the time limited, and the bill was taken pro confesso, and a decree entered in accordance with the prayer of the bill. Soon after an application was made to open the decree pro confesso based upon affidavits of the sickness of Thall at the time and an answer was produced and leave asked to file it. The learned judge of the court below held that “ upon the affidavits filed there is perhaps enough to make the rule absolute so as to allow an answer to be put in, but the answer itself is insufficienthe, however, allowed the answer to be filed “ so that the record will show what it contains,” but refused to disturb the decree.

To determine the sufficiency of the answer it is necessary to look into the bill. That states the payments falling due to Thall, the judgment for costs against him, that execution had issued and been returned nulla bona, that ‘‘your orator has no definite or actual knowledge of any property out of which he can collect his said demand,” except the quarterly payments falling due to Thall; and concludes with an averment that “ your orator has good reason to believe and does believe” that Thall has ready money in his possession or control, but that “ your orator has no certain or definite knowledge in reference thereto.” Then follows a prayer for the set-off and for an injunction against Thall to restrain him from collecting the quarterly payments till the judgment for costs is fully paid.

The answer admits the existence of the judgment against Thall for costs, and of the judgment in his favor against Chilson to secure the payment of the quarterly allowance for his support, denies the possession of any property subject to levy and sale on execution, or any means of support other than the quarterly allowance payable by Chilson. It also denies that the plaintiff had any good reason to believe that he had money in his possession or control, and adds, “ nor have I any such money.” The answer contains much matter that is irrelevant and impertinent, which the court would have struck out on a proper application, but after the answer is thus purged, it contains a distinct, positive, and pertinent reply to each allegation in the bill upon which the prayer for relief rests. After the default in making the answer in time was accounted for, the decree pro confesso should have been vacated and the answer filed.

But we have the bill and answer now before us and we are at a loss to understand how the plaintiff is entitled upon the admitted facts of this case to the relief prayed for. The slender allowance to be paid quarterly to Thall is the only provision for his support in his old age. Even the plaintiff is unable to tell us of anything else that stands between his wife’s father and actual want. At law he would be entitled to the benefit of the exemption laws, and could insist upon having these quarterly payments appraised, if an effort was made to take them from him by attachment as they fell due.

What the plaintiff could not do at law, therefore, by way of stripping this old man of his support, he comes into a court of equity and asks a chancellor to do. He still holds the title to the home and farm of his father-in-law which was conveyed to him in consideration of his promise of support. The quarterly allowance of $37.50 has been substituted in lieu of the support originally contracted for. The plaintiff now asks in a court of equity to take this support away from an old man eighty years of age, enfeebled by disease, and with no other visible means of support, in order to pay his judgment for costs which he cannot collect at law. A court of equity is not the place in which to seek relief of this sort.

Decree reversed at cost of appellee, and bill dismissed.