Weisman v. Heron Mining Co., 57 N.C. 112, 4 Jones Eq. 112 (1858)

June 1858 · Supreme Court of North Carolina

57 N.C. 112, 4 Jones Eq. 112

JOSEPH WEISMAN against THE HERON MINING CO. and others.

If a defendant wishes to avoid a full answer, he must demur to the relief and discovery sought.

33ut a defendant cannot answer a bill in part, and introduce new matter as going to defeat the plainttiT’s equity, and insist on that as a reason why he shall not answer another part of the bill.

Where he wishes to avoid an answer in respect to a particular matter, (as that it will criminate him, &e.) he must answer the other parts of the bill, and demur to the discovery of such particular matter.

"Where defendant wishes to avoid a full discovery, on the ground, that there is a fact which defeats the plaintiff’s equity, he must allege such fact by plea.

The Court disapproves of the practice of setting forth arguments in support of the equifies relied on, either in a bill, or answer.

This was a suit removed from the Court of Equity of Wake county.

The general scope and object of the bill was to enforce the equities, growing out of a contract, in writing, between the plaintiff, Weisman, and Richard Smith, the testator and devisor of the defendants, Penelope and Mary A. Smith, and against the latter and their alienees.

The plaintiff sets forth, in his bill, that in 1842, at great pains, and outlay, he discovered a large extent of plumbago in the vicinity of Raleigh, and not having the requisite moans to purchase, he engaged the testator, Richard Smith, husband of defendant Penelope, to join him in purchasing the land', upon which this mineral existed; that accordingly, they entered into a covenant, in writing, in which it was stipulated that in consideration of the plaintiff’s disclosure of his discovry, the said Smith should, from, time to time, advance the funds requisite to purchase these lands, to an amount, not exceeding $10,000; that as soon as any such tracts shall he purchased, Smith was to convey one-half thereof to him, Weisman, in fee ; also, that he should convey to plaintiff one-half of all the land he, Smith, had purchased, in furtherance of their plans of manufacturing and selling mineral, before the execution of this covenant, and that he, Weisman, was to convey one-half of all the lands which he had purchased, or might purchase, with the same object and views; that plaintiff was to pay Smith $3,500, at the expiration of five years, with interest, for his moiety, lor which plaintiff pledged his interest; that should the purchase of these lands exceed" $10,000, the excess should be a charge upon the profits of the concern, and that neither party should appropriate any part of the profits until such excess and expenses of the business were paid off; that as soon as the purchases were made, the parties should commence the business of raising, preparing for market, and selling this mineral, and that plaintiff should devote the whole of his time to the superintendence of the business; that each party should keep proper accounts of the business, and that if no profits should arise, each party was to pay one half of the excess over $10,000; that all monies should be paid into the hands of Smith, who should make advancements to carry on the business, and that all transactions should be carried on under the name of “Smith & Weisman.” And that it was further covenanted as follows, to wit: “That if either party shall, at any time, wish to withdraw from said concern, he shall not be at liberty to sell or convey his share, or moiety, or any part or portion thereof, to any other person before he shall have given to his copartner at least 12 months notice thereof, and to whom the refusal to purchase shall always be given, within that time. And the said parties do severally agree to bind, and do bind themselves, their heirs, executors, administrators, to the strict performance of this last article.”.

That the said Smith, in pursuance of the covenant, purchased the following tracts of land in Wake county, viz: the “Cook traet” of 460 acres; although the conveyance was pri- or to the covenant, yet it was purchased in pursuance of the agreement afterwards embodied in the covenant above recited: the “Saunders tract” 82-J- acres; the “Collins tract” 537f acres; the “Ilaywood or Harrison tract”; the “Robeteau tract” 50 acres; the “Malone tract” 176 acres; the “Finch tract” 55 acres; the “Johns tract” 700 acres; the “Spikes or Jeffrey’s tract” 340 acres; the “McDade tract” 130 acres; the “Stuart tract” 176 acres; the “High tract” 400 acres; one half of the mining interest in the “ May tract”; the mining interest in a tract owned by William Hill 700 acres; the “Evans’Heirs tract” 256 acres; the “Alfred Jones tract” 556 acres; the “ Hollister tract ” 880 acres, also a small tract of 4 acres called the the “ Mill tractamounting in the whole to 5956 acres; the titles of all of which were made to the said Smith, as plaintiff alleged, for the benefit of plaintiff and himself, and in which, he insisted under their contract he was entitled to a pre-emption or refusal. The bill alleges that the said Smith bought for the like use other lands, the boundaries and description -whereof, were unknown to the plaintiff and which he prays may be discovered, to the end that he may be admitted to his rights in the same, as above set forth. He asks for a discovery as to whether there were not other lands bought by Smith, than those stated in the bill..

To the interrogatory, based upon this allegation, neither of the answers responded, and for this the plaintiff excepted. This is the plaintiff’s fourth exception to the defendants’ answers.

FIRST EXCEPTION.

The bill alleges that after the death of Richard Smith, his widow Mrs. Penelope Smith and his daughter Mary A Smith, to whom these lands were by him devised, sold the same to the defendant Winder, in fee simple, and avers that he had notice of the covenant above set out, and of the plaintiff’s preemption right under it. He professes his willingness to pay the amount which Winder actually gave for the land, but suggests that that sum was much less than the consideration money inserted in the deeds of conveyance to him; and that the sum was exaggerated in order to deter him from making the election which he claims to be his right under the deed of covenant above recited. He calls on these, defendants Winder, Mrs. Smith and her daughter to discover whether any part of this price was paid and if so how much.

To the interrogatory shaped upon these allegations, the defendants Penelope and Mary Smith say, they decline to answer as being “impertinent, irrelevant and useless.” The defendant Winder in response to this interrogatory says 1st. That he never heard of this pre-emption claim until after he purchased, and had no knowledge of it. That the plaintiff himself in many instances acted as if none such existed, or as if he had abandoned it. The answer goes on here to state various passages between the plaintiff and himself and others, inconsistent with the claim. 2ndly. That this right was settled, compromised and given up in a new arrangement between Smith, Weisman and one Ilepburn, whereby one half of all these lands, except the mill tract, was conveyed by Smith to Ilepburn and the plaintiff. 3rdly. That even when the contract of 1813 was in force, the provision for a pre-emption was a nullit3r, because it was utterly impracticable of execution. Ithly. That if practicable it was personal, and was annulled b3r the death of Smith, and likewise by the sale to Ilepburn, when the interests of the parties became unequal. 6thly. That the covenant did not run with the land, and as this defendant purchased, without notice, he is not affected-t and that for these reasons this defendant is advised, and being so advised, he insists that the demand made by the plaintiff to be informed b3r this defendant of the price at which he bought, or contracted to buy of the devisees of Eichard Smith, thek* interest in the said mineral lands, is “irrelevant and impertinent, and that he is not bound to answer the same, or make any' discovery thereof and this defendant therefore declines to make answer thereto.”- To both these answers to this interrogatory the plaintiff excepts, which is his jSrsí ex-■eeption.

SECOND EXCEPTION.

Mrs. Smith and her daughter had been sued by Winder upon their covenant of seizin and recovery had againt them in the Supreme Court upon the ground that there was a contingent limitation in the will of Eichard Smith to the children of Mary Smith if she should ever have any, which disabled the bargainors from conveyingan absolute fee. The plaintiff prays, in this same connection, a discovery whether the price agreed to be paid by Winder for these land's was not greatly abated on account of this recovery. To this inquiry the defendants decline to answer, alleging the same reasons for not doing so as to the other branch of the inquiry.

' THIRD EXCEPTION.

The pleadings show that after this covenant between Smith and Weisman in 1843, Weisman went to Philadelphia to establish a factory and store-houses where the mineral in question was to be refined and sold; he alleges that he went to great expense in making preparation for this business, but Smith sent him on little or none of the material; that he, hearing that Smith was endeavoring to thwart and harrass him because his means were limited, sold one half of his interest to one Hepburn, a capitalist of that city, for $10,000 with the purpose of raising the means thus acquired in performing his part of the mining and manufacturing business more vigorously, but when they went to Smith to convey the légal title of his fourth to Hepburn, he refused to do so unless this whole sum of $10,000 was p>aid to him, Smith; he alleging that by the contract $3,500 was due him for the land on the first $10,000, and that the remainder, to wit, $6,500 was due on account of the excess of land over the sum first specified in the deed of covenant; that Hepbnrn, not having the money beyond tbe $3,500, gave his bonds to him, the plaintiff, for the remainder, which he endorsed to Smith, and Smith having conveyed a fourth of the land to-each, both Hepburn and himself mortgaged their interest in these lands for the payment of these bonds. The plaintiff alleges that he- and Hepburn had a controversy which wras adjusted by arbitration, and tbe latter sold his share in this property to the defendant Winder; afterwards when the defendant Winder bought Smith’s half from his devisees, the bonds which Hepbnrn bad given (endorsed by plaintiff) were assigned by Mrs. Smith, the executrix of R. Smith, without recourse, to R. E. Stockton, but delivered to the defendant Winder, by whom it is alleged in plaintiff’s bill, they were sent to Philadelphia, where plaintiff lived, and suit brought against him for the purpose of harrassing and oppressing him and to worry him into a sacrifice or abandonment of his rights. The plaintiff alleges that this indorsement to Stockton was illusory ; that he did not pay any thing for the bonds, or if so, a mere nominal sum, and prays a discovery as to this fact. Neither of the answers respond as to the amount paid to the Smiths for these bonds or whether any thing was paid by him, either for himself or for E. E. Stockton, nor do they answer as to the imputed design of harrassing the plaintiff, and for these omissions the plaintiff excepts, which is the third exception.

The cause was set down to be argued on the exceptions and sent to this Court.

Graham and G. W. Haywood, for the plaintiff.

Moore and Mason, for defendant Winder.

Miller, for the Smiths.

Pearson, J.

It is the settled practice of this Court, when the defendant wishes to avoid a full answer, and to raise the question that the plaintiff has no equity upon his own showing, he must demur to the “relief and discovery,” on the ground, that it is not material for him to answer, inasmuch as the plaintiff, admitting every thing for the sake of argument, has not made out a case. When he wishes to avoid an answer in respect to a particular matter, on the ground that it would criminate him, or disclose matter confided to him as counsel, or an affair of State, he must answer the other parts of the bill, and demur to the “ discovery” of such particular matter. When he wishes to avoid a full answer, on the ground, that there is some fact which defeats the plaintiff’s equity, he must allege the fact by plea, so that the plaintiff may take issue; and when he wishes to avoid an answer to some particular matter, on the ground, that there is a fact, which excuses him from making a discovery in respect thereto, he must answer the other parts of the hill and allege the fact by plea, as that he is a purchaser for valuable consideration, without notice, and therefore is not obliged to discover his title. With these exceptions of a demurrer to the discovery of a particular matter, and a plea in respect to some particular matter, as to which a discovery is asked for, the general rule is, “ a defendant, if he answers at all, must answer fully” to all allegations which are material to the equity set up hy the hill: so that if the answer is excepted to, as not responsive to a particular allegation, and he puts the omission on the ground of its being immaterial, the exception is heard upon the assumption that, according to the plaintiff’s own allegations, and supposing him entitled to the equity which he seeks, the particular allegation is impertinent. The defendant Winder, in this case, attempts to make an entire departure from this practice. After setting out many matters by way of defense, and responding to other facts of the bill, he declines to answer a particular allegation, and sets out in extenso, five reasons for doing so ; which involve new matter introduced by his answer, in regard to which, of course, at this stage of the proceeding no declaration can be made, and upon the hearing of the exception, it is insisted, in his behalf, that an answer should not be required, because the allegation was immaterial, on the broad ground, that according to the plaintiff’s own showing, he had no equity; thus attempting to draw in question the plaintiff’s equity, upon an exception to the answer, instead of doing so by the orderly mode of filing a demurrer, which gives notice to the opposing counsel, and upon which the whole matter, being fully debated by counsel, on both sides, and being considered by the Court, its opinion may be declared, and a definite action taken, either by dismissing the bill for the want of equity, or by a declaration of the plaintiff’s rights, aud an order that the defendant answer. One or two cases were cited, by which it appears, that in several of the States a departure has been made from the practice stated above, and by the case of Hardiman v. Harris, 17 Curtis, 372, it seems that the Supreme Court of the United States, on an exception to the answer, will decide upon the plaintiff’s equity. It may be, that the inconvenience of-the practice is not so perceptably felt in that Court, because the opposing counsel, and the Court are furnished with printed briefs, containing a list of the authorities that are relied on. But we are satisfied that this new practice is both inconvenient and unfair. The inconvienence is readily perceived, and the unfairness consists in this : if the plaintiff has no equity, the defendant is not obliged to answer, and when, instead of demurring, he puts in an incomplete answer, the motive must be to take advantage of the occasion, in order to make a favorable impression, by setting out his matters of defense, and denying all the allegations of the bill as far as his conscience will permit, and stopping short on the ground that the plaintiff has no equity any how ! For these reasons, we will not permit a departure from our practice.

While upon the subject, we enter our protest against the practice, which we perceive, not only by the pleadings in this, but in several other eases, within the last few years, is growing up ; we refer to setting out in the bill, or answer, the reasons or causes of argument, which tend to support the case, or the defense. The place for all this is upon the argument of the cause and not in the pleadings, and the practice, besides incurring unnecessary costs, is productive of very great inconvenience ; for when it becomes necessary to look over the pleadings for a particular point, it is literally “ hunting for a needle in a hay stack.”

The present case is complicated, because the plaintiff seeks to set up three equities distinct, but still somewhat connected, as they all grow out of one original transaction. The pleadings, therefore, are necessarily voluminous, and we are not to be understood as applying the rule, “ a defendant, if he answers at all, must answer fully,” to these three distinct equities. He may, of course, demur, plead, or answer, to each severally ; but when he undertakes to answer as to one, he must do so fully in regard to it.

The first exception is allowed, and also the second, which rests upon the same ground. The third is allowed, on the ground, that the answers do not ’respond directly to the aliegations and the interrogatories framed therein. The defendant Winder, in an evasive and exculpatory manner, admits, inferentially, that he did not take a proper view of his obligation to indemnify Hepburn, who was the principal in the notes to Smith, the plaintiff being his surety, but he does not answer the allegation, that he caused the plaintiff to be sued, &c., for the purpose of harrassing him, &c., or thereby forcing him to abandon or compromise his rights.

The 4th exception is also allowed. The plaintiff is entitled to a direct answer, as to whether Richard Smith did not purchase other land, in pursuance of the covenant, than those specifically set out in the bill, and if so, what tract or tracts ?

Per Curiam, There will be an order requiring a more full answer.