Gillett v. Robbins

12 Wis. 319

Opinion

By.the Court,

DixON, C. J.

The pleadings in this case were made Tip anterior to tire adoption of the Code and according the system which formerly prevailed in the courts of chan-eery. The counsel for the appellant referred us to no adjudications in which it has been held that it was bad or insufficient pleading, in a bill or answer in equity, to allege that certain named parties were heirs at law of a deceased person, and that as such upon his death they succeeded to certain of his rights. Upon examination w.e can find no authorities sustaining such a position. On the other hand, we find in several hooks or collections of precedents, of well established authority and reputation, each of which may be regarded as having received the sanction and approval of competent tribunals, that, both at common law and in equity, this form of averment was frequently used. Curtis’s Eq. PL, 74, 87; 2 Bar. Oh’y. Pr., 559, 566; 2 Ohitfy’s PL, 468, 469. The two things taken together would seem to establish as matter of authority, that the allegation in the bill of revivor, before the same was amended, that the complainants therein were the heirs at law of Benoni 11. GilleU deceased, intestate, to whom the real estate, described in the original bill filed by him, descended by the laws of descent, was sufficient, and that- consequently no amendment was necessary.

On general principles we do not see why such statement ought not then to have been, and would not now be considered as a good averment of matter of fact which it was material for the complainants to allege and prove, in order to maintain the action. Although it may in strictness be said that, whether one person is, or is not, the heir at law of another who is dead, is a mixed question of law and of fact; and that the averment that he is so, is in part a conclusion of law, to be deduced from several intermediate facts which must be established in evidence; still .it is so much in the nature of a fact, and its statement in this form so fully apprises the opposite party of the foundation of the claim, which is set up against him, that the law, which favors brevity and conciseness, and the avoidance of unnecessary allegations, in pleading, treats it as such. Many analogous instances of mixed matters of law and fact being, for the purpose of pleading, treated as facts, might be cited. Such, in particular, are statements of title or ownership of property, both real and personal The averment that a party is owner of an article of personal property, in relation to which he claims some right or some redress in a court of law or equity, will, we think, when subjected to a rigid analysis, be found to be quite as much, if not more, a conclusion of 'law, than a statement of fact; yet our daily experience ahd constant practice prove, that such averments are, and ever have been considered good. The same is true of the title or sei- ■ sin of real property, the proof of which often depends- upon a long succession of conveyances, each of which must, on the trial, be established by competent testimony, but none of which has it ever been the custom to set out in the pleadings. It is difficult to perceive any reason which would require parties claiming to be the heirs of a deceased person, to state the several degrees of their relationship to the deceased, with all the accompanying circumstances, which would not equally require one asserting title to realty to set out the several links in the chain,- by virtue of which he proposes to connect himself with the original source of the title. In either case, it is a technical nicety, which the law, looking more to the correct and easy administration of justice than to absolute logical harmony, does not demand. Both, when plainly and directly stated, though partaking somewhat of the nature of legal conclusions, are deemed sufficient to inform the opposite party of the foundation of the claim made against him, which is the principal object of all pleadings. Any other rule in such cases would lead to a needless particularity and burdensome prolixity of statement, often times very difficult to be attained. Hence, we- are of opinion that no amendment of the bill in this case was required.

But if it be admitted that the bill was, in this respect, defective, and the amendment necessary, we do not, then, see how the defendant-or his counsel can claim to have-been taken by surprise by it. ■ They must have known that the-plaintiffs would come-to the trial relying upon, and expecting to prove the fact, that they and the other complainants in the bill of revivor, under whom they claimed, were the heirs at law of tbe deceased This was a matter lying so plainly and palpably at tbe foundation of tbe action, that its consideration could not have been overlooked by either of tbe parties. Tbe entire rights of tbe plaintiffs depended upon it; and unless it was proved, no judgment in their favor could be obtained. Tbe defendant and bis counsel must also bave known that tbe plaintiffs intended to offer this proof under tbe averments contained in tbe supplemental bill and tbe bill of revivor. Those averments, however defective, were certainly sufficient to inform them of that intention Proofs to that end were taken some months before tbe trial took place. Under these circumstances there is no room for tbe supposition that tbe testimony introduced came unexpectedly upon them, or that they were not fully aware that it would be offered and relied upon. Indeed, tbe counsel, in bis affidavit of surprise, does not pretend that be was taken unawares by tbe evidence, but be says, that up to, and including tbe trial, and when tbe cause was submitted, be relied upon tbe supposed defects for tbe purpose of defeating tbe action, and obtaining a decree in favor of tbe defendant. It is nothing more nor less than saying, that tbe action of tbe court in allowing tbe amendment, was unexpected to him —that be did not anticipate it. This, in our opinion, is not tbe kind of surprise or misleading contemplated by tbe statute. We understand it to refer to tbe sudden and unexpected proof of facts, of which tbe opposite party cannot, by tbe pleadings, be reasonably said to bave bad notice; and which, for that reason, be could not, in tbe exercise of ordinary diligence, bave been prepared to meet or rebut. Tbe spirit, if not tbe letter, of our statutory provision concerning tbe amendment of pleadings, both as to defective statements of facts and variances between tbe allegations and proofs, binds tbe parties to tbe exercise of good faith in all their transactions in relation to them. If they are defective or irregular, or differ from tbe facts proved, tbe parties are bound to know that tbe court possesses tbe power of amendment, and that in furtherance of justice, this power will be exercised on tbe most generous and liberal terms, in all cases where there is enough of substance in tbe defective pleading to bave fairly apprised tbe opposite party of wbat be was required to meet. They are bound to take notice that in all cases, amendments will be granted on fair and reasonable conditions. They rest in tbe sound discretion of tbe court, and will not be reviewed on error or appeal, except in cases where tbe power bas been clearly and manifestly abused. The judge at tbe circuit can best determine whether tbe adverse party bas been surprised or misled, or whether any injury is likely to result to him from bis relying on tbe defect or variance; and whether be ought, in good faith, to bave rebed upon it all. In this case we are satisfied, conceding tbe amendment to bave been necessary, that it was no abuse of discretion^ to allow tbe complainants to amend instanter, and on tbe argument, without costs, and without a continuance of tbe cause.

We bave taken this occasion briefly to express our views on this subject, not because we are of opinion that any step taken in tbe cause is attributable to bad faith on tbe part of either of tbe counsel or parties to it, but because of its importance to tbe profession, growing out of tbe frequency of applications of this nature, and because it seemed to us not unsuited to tbe purpose. Tbe question here involved arose at a very early day after tbe adoption of tbe Code of Procedure, and at a time when there bad been no adjudications upon its provisions; and when either good or bad faith in relation to it could hardly be ascribed to any body.

Upon tbe merits of this action we feel very confident that tbe judgment of tbe circuit court was correct, and that it ought to be affirmed. Tbe question upon which tbe determination of its merits mainly, and we might almost say entirely, turns, is whether tbe evidence discloses a parol express trust in reference to tbe land, or a resulting trust. If tbe former, although tbe purchase money was fully paid, yet there being no other act done, a conveyance would not be decreed. If tbe latter, according to tbe laws which prevailed in tbe territory of Wisconsin, at tbe time tbe transaction took place, a specific performance should be ordered, although according to tbe provisions of our present statutes, sections 6, 7, 8 and 9, of chapter 84, such trust might not be declared or performance ordered in behalf of the present plaintiffs, if the affair had transpired since their enactment. In determining whether it was a parol express trust, or is one resulting by implication of law, it is only necessary to ascertain whether the purchase money was furnished by the deceased to the defendant before he completed the purchase at the land sales, and was applied by him in payment for the land, as is charged in the bill; or whether he received it after he had, in fact, made the purchase with his own- money, and in pursuance of the previous parol agreement, by which he was to buy and convey to the deceased, as is insisted in the answer. This will readily be recognized as purely a question of fact to be decided upon the evidence produced. That the defendant bought the land, not for himself, but upon a trust resulting or parol, is not' disputed. Nor is it denied that he, at or about the time of the sale received from the deceased, the full amount of the consideration paid. These facts are admitted in his answer. But he insists that the parol contract into which he entered, was with the deceased and one John Edwards, to whom he was to convey the land, according to the terms and conditions of the contract, as set forth by him in his answer. He denies that the contract was made with the deceased' alone. He also-denies that he received ■ the consideration money from the deceased before the purchase was consummated, but admits that he received it on the evening of the same day on which he obtained the- duplicate, and paid for the- land with his own money.' The bill charges that the agreement was made solely with the deceased, and that the land was paid for with money previously furnished by-him to-the defendant for that purpose. These are' the material points of the issue. ■

Tt-cannot be -denied, -that in considering questions like the present, where one party admits facts which tend strongly to show that the other is morally and equitably entitled to the relief which he asks, but insists upon some statute, as in this. instance upon that against frauds and perjuries, to tie up the hands of the court, and prevent its being granted, it is often very difficult to rid our minds of the impressions which such admissions are calculated to create. We involuntarily cling to wbat appears to be the substantial equity of the transac.tion. But aside from any influence of this.-kind, against wbicb we have endeavored to guard, and giving to the answer the credit to which it is entitled as evidence in the defendant’s behalf, we are clearly of opinion that there is a decided preponderance of proof in favor of the allegations of the bill. The objections to the testimony which is relied upon to overcome the denials of the answer, go to its character rather than to the number or credibility of the witnesses sworn. It consists in admissions made by the defendant, at or about the time of the sale, to the effect, that he had purchased the land for the deceased, and with funds provided by him; and in proofs- that the defendant had acquiesced -in the occupancy and receipt of the rents of the land, by the deceased and those claiming under him, since the time of the sale, the same being a valuable mineral lot.' It is insisted that such admissions ought .not to -be received for the purpose of disproving or rebutting the sworn statements of the answer — that in order to -destroy its -effect, the witnesses must testify-to. facts within-their .knowledge, and not to what they have heard the defendant say in' re-relation to them — and that the ¡oositive testimony • of three witnesses, to declarations directly contradicting the aver-ments of the answer, and made at different times, and under different circumstances, are not equivalent-to .the evidence of two witnesses to the facts themselves, and are, therefore, not a compliance with the old chancery rule upon the subject. But two authorities (10 Yesey Jr., 517, and 2 John. Ch. R, 412) are cited to support these positions, neither of which, in our opinion, does so. Both recognize the admissibility of such declarations, but admonish us that they are evidence of an unsatisfactory character, on account of the ease with which they may be fabricated, and -the impossibility of contradicting them; -and warn us against their being too readily accepted and believed. . But with'these cautions, we know of no rule which forbids them in any case. ,We know of no principle of law touching an answer in chancery which renders its statements, so sacred or so infallible,, that they may not be attacked and overthrown according to the rules of evidence which govern other cases. The general principle which authorizes the reception of admissions, namely, that whatever a party, contrary to his own interests, voluntarily admits to be true, may reasonably be taken for the truth, seems to be as applicable to such a case as any other. We can see no reason for the exception. And if the admissions are clearly and satisfactorily proved, and are such as to convince the court of their truth, we are unable to see why they may not be acted upon. In this case, when taken in connection with the facts admitted in the answer, and the circumstances of possession and control of the land, they satisfactorily establish the allegations of the bill. The theory upon which it is sought to exclude them, would, if adopted, extend to their exclusion in all cases where, according to the former system, there was an answer under oath, without regard to their character or the manner in which they were made; and it would follow that written admissions, contrary to the averments of the answer, no matter how many times repeated, if not under oath,would be of no avail to the plaintiff. Such, it seems to us, could not have been the law.

The testimony of the witness Edwards, whom the defendant claims to have been one of the parties to the contract, does not shake the case made by the plaintiffs in the least It is true that he testifies that he claimed a portion of the land in question prior to the land sales, and that he and Qil-Tett, the deceased, appointed the defendant to enter it for them. But Ms testimony on this subject is so very meagre, and couched in such language, that the impression that he and Qillett, and the defendant, never talked together at all until long after the sales, is unavoidable. He swears to no bargain or agreement between them. He says that he and Qillett “did appoint Bobbins to enter the land,” &c.; from wMch the only legitimate inference is, that whatever understanding there might have been between Mm and Gillett, it was one to which the defendant was not a party, and wMch was arrived at when he was not present. His testimony further shows, that by his agreement or understanding he was to look to Qillett for whatever title or interest he claimed. He speaks about having tendered to Mm Ms portion of the purchase money. He claims to have advanced no part of it, but admits that it was all paid by Cülett. This as to him would make the contract clearly within the statute. He had no rights which could have been enforced.

Judgment affirmed.