Whitfield, J.,
{after stating the facts.)—The bill of complaint alleges that the complainant has a fee simple title to the timbered land, that the defendant is cutting and removing the timber from the land, and that the defendant has no right or title to the timber, but claims to have a certain lease_on said timber, which lease has expired, a copy of the lease marked Exhibit “A” being made a part of the bill of complaint. The answer admits the title of the complainant to the land as alleged, and admits the cutting and removing of the timber from the land by the defendant by virtue of 'the conveyance of lease Exhibit “A” alleged in and made a part of the bill of complaint, but seeks to avoid the allegation of the bill that the right or title of 'the defendant under the conveyance or lease had expired, by averring facts and circumstances' which when taken with the conveyance or lease will, it is claimed, show the right of the defendant to cut and remove the timber from the land.
A general replication was filed May 7, 1906, and the parties were given an opportunity to take testimony as the burden of proof required. Three months are allowed by circuit court equity rule 85 for taking testimony after a cáuse is at issue.
When a replication is filed to an answer, it thereby' puts in issue all the matters alleged in the bill of complaint that are- not admitted by the answer, as well as those matters contained in the answer that are not responsive to the bill of complaint. Matters set up in the answer that are not responsive to the bill, as new matters in opposition to or in. avoidance of the allegations oi the bill, must be proved by the. defendant. Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95, text 100; Orman, Admr. v. Barnard, 5 Fla. 528; Parken v. Safford, 48 Fla. 290, 37 South. Rep. 567.
The allegations of the bill of complaint that are ad[636] mitted by the answer are taken as true and require no proof. 16 Cyc. 371; 1 Ency. Pl. &, Pr., 927. The material allegations of the bill of complaint that are denied by the answer are to be proved by the complainant. Gibson’s Chancery, §443. The averments in the answer of the new matter not responsive to the allegations of the bill of complaint are to be proved by the defendant. See Fletcher’s Eq. Pl., §637; Pinney v. Pinney, supra.
The cause'having been heard February 9, 1907, upon bill, answer and replication, after the time for taking testimony had expired, no testimony being taken by either party, all the allegations of the bill of complaint that are admitted in the answer are, of course, taken 'as true and required no proof. Patrick v. Kirkland, 53 Fla. 768, 43 South. Rep. 969. Any material allegations of. the bill of complaint that are denied by the defendant not being proven, cannot avail the complainant. The averments in the answer of new matter not responsive to the bill are not proven and cannot avail the .defendant. See Beach’s Mod. Eq. Pr. §367. On such a hearing the admissions in the answer bind the defendant, the denials in the answer bind the complainant, and the new matter in • the answer not responsive to the bill is eliminated.
The answer admits the title of the complainant to the land, the cutting and removing of the timber by the defendant, and that the defendant claims title to the timber and the right to cut and remove it from the land by virtue of the conveyance or lease alleged in the bill of complaint. These are the essential allegations of the bill of complaint, and being admitted, required no proof; and the complain■ant was entitled to a decree unless the affirmative averments of other matters contained in the answer established the right of the defendant to cut and remote the timber from the land, or unless such averments cast upon [637] the complainant the burden of disproving them to entitle complainant to a decree. The conveyance or' lease alleged in the bill of complaint and admitted in the answer does not on its face show a clear right in the defendant to cut and remove the timber from the land. See 10 Ency. Pl. & Pr. 1056; Morris Canal Co. v. Matthiesen, 17 N. J. Eq. 385; Clum v. Brewer, 2 Curtis (U. S.) 506.
The allegation in the bill of complaint that the defendant had no right or title to the timber on the land is followed by an allegation that the defendant claims the right to the timber under a lease, which lease' is alleged to have expired before the suit was brought. The answer admits the defendant’s claim of title to the timber under' the conveyance or lease alleged in the bill of complaint, and affirmatively avers that the conveyance or lease when taken in connection with other matters stated in the answer but not alleged in the bill of complaint, give the defendant the title to and the right to cut and remove the timber from the land. These affirmative averments are not necessarily required by the bill of complaint, do not grow out of any of the transactions or facts alleged in the bill or admitted in the answer, and are not inseparably connected therewith, therefore such averments constitute new matter, not responsive to the bill of complaint, and not being proved cannot avail the defendant. See Jacksonville Loan & Imp. Co. v. Maxwell, 45 Fla. 425, 34 South. Rep. 255. See, also, Carter v. Bennett, 6 Fla. 214; Tyler v. Toph, 51 Fla. 597, 40 South. Rep. 624; McQourin v. DeFuniak Springs, 51 Fla. 502, 41 South. Rep. 541.
Where the answer in an equity cause sets up affirmative averments of new matter not stated or inquired of, or not inseparably connected with matter stated or in[638] quired of, in the bill of complaint, and such new matter is in opposition to, or in avoidance of, the plaintiffs’ demand or claim of right, and a general replication is filed, such affirmative averments are of no avail to the defendant unless proven by independent testimony. Daniel’s Chan. Pl. & Pr. (6th Am: Ed.) p. 845, and authorities cited; Clements v. Moore, 6 Wall. (U. S.) 299; McCoy v. Rhodes, 11 How. (U. S,) 131.
The allegation in the bill of complaint that the defendant had mo right or title to the timber on the land is not denied, and the answer contains no general denial of the allegations of the bill of complaint. The only denial in the answer is as to the value of the land for the timber.
It is insisted that the narration of facts in the answer is a denial that the alleged right of the complainant set forth In the bill ever did exist, and is therefore responsive 'to the bill, even though the answer contains any number of independent facts and even though there is no direct denial in haec verba of any allegation of the bill of complaint. The argument is that the bill of complaint admits a severance of the timber from the land by a conveyance of the 'timber prior to the acquisition of complainant’s title to the land, therefore if the matter contained in the answer constitutes a defense, it is not because it avoids a prior existing right in the complainant, but because it denies the acquisition by the complainant of any right in the timber.
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Whitfield, J.,
{after stating the facts.)—The bill of complaint alleges that the complainant has a fee simple title to the timbered land, that the defendant is cutting and removing the timber from the land, and that the defendant has no right or title to the timber, but claims to have a certain lease_on said timber, which lease has expired, a copy of the lease marked Exhibit “A” being made a part of the bill of complaint. The answer admits the title of the complainant to the land as alleged, and admits the cutting and removing of the timber from the land by the defendant by virtue of 'the conveyance of lease Exhibit “A” alleged in and made a part of the bill of complaint, but seeks to avoid the allegation of the bill that the right or title of 'the defendant under the conveyance or lease had expired, by averring facts and circumstances' which when taken with the conveyance or lease will, it is claimed, show the right of the defendant to cut and remove the timber from the land.
A general replication was filed May 7, 1906, and the parties were given an opportunity to take testimony as the burden of proof required. Three months are allowed by circuit court equity rule 85 for taking testimony after a cáuse is at issue.
When a replication is filed to an answer, it thereby' puts in issue all the matters alleged in the bill of complaint that are- not admitted by the answer, as well as those matters contained in the answer that are not responsive to the bill of complaint. Matters set up in the answer that are not responsive to the bill, as new matters in opposition to or in. avoidance of the allegations oi the bill, must be proved by the. defendant. Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95, text 100; Orman, Admr. v. Barnard, 5 Fla. 528; Parken v. Safford, 48 Fla. 290, 37 South. Rep. 567.
The allegations of the bill of complaint that are ad[636] mitted by the answer are taken as true and require no proof. 16 Cyc. 371; 1 Ency. Pl. &, Pr., 927. The material allegations of the bill of complaint that are denied by the answer are to be proved by the complainant. Gibson’s Chancery, §443. The averments in the answer of the new matter not responsive to the allegations of the bill of complaint are to be proved by the defendant. See Fletcher’s Eq. Pl., §637; Pinney v. Pinney, supra.
The cause'having been heard February 9, 1907, upon bill, answer and replication, after the time for taking testimony had expired, no testimony being taken by either party, all the allegations of the bill of complaint that are admitted in the answer are, of course, taken 'as true and required no proof. Patrick v. Kirkland, 53 Fla. 768, 43 South. Rep. 969. Any material allegations of. the bill of complaint that are denied by the defendant not being proven, cannot avail the complainant. The averments in the answer of new matter not responsive to the bill are not proven and cannot avail the .defendant. See Beach’s Mod. Eq. Pr. §367. On such a hearing the admissions in the answer bind the defendant, the denials in the answer bind the complainant, and the new matter in • the answer not responsive to the bill is eliminated.
The answer admits the title of the complainant to the land, the cutting and removing of the timber by the defendant, and that the defendant claims title to the timber and the right to cut and remove it from the land by virtue of the conveyance or lease alleged in the bill of complaint. These are the essential allegations of the bill of complaint, and being admitted, required no proof; and the complain■ant was entitled to a decree unless the affirmative averments of other matters contained in the answer established the right of the defendant to cut and remote the timber from the land, or unless such averments cast upon [637] the complainant the burden of disproving them to entitle complainant to a decree. The conveyance or' lease alleged in the bill of complaint and admitted in the answer does not on its face show a clear right in the defendant to cut and remove the timber from the land. See 10 Ency. Pl. & Pr. 1056; Morris Canal Co. v. Matthiesen, 17 N. J. Eq. 385; Clum v. Brewer, 2 Curtis (U. S.) 506.
The allegation in the bill of complaint that the defendant had no right or title to the timber on the land is followed by an allegation that the defendant claims the right to the timber under a lease, which lease' is alleged to have expired before the suit was brought. The answer admits the defendant’s claim of title to the timber under' the conveyance or lease alleged in the bill of complaint, and affirmatively avers that the conveyance or lease when taken in connection with other matters stated in the answer but not alleged in the bill of complaint, give the defendant the title to and the right to cut and remove the timber from the land. These affirmative averments are not necessarily required by the bill of complaint, do not grow out of any of the transactions or facts alleged in the bill or admitted in the answer, and are not inseparably connected therewith, therefore such averments constitute new matter, not responsive to the bill of complaint, and not being proved cannot avail the defendant. See Jacksonville Loan & Imp. Co. v. Maxwell, 45 Fla. 425, 34 South. Rep. 255. See, also, Carter v. Bennett, 6 Fla. 214; Tyler v. Toph, 51 Fla. 597, 40 South. Rep. 624; McQourin v. DeFuniak Springs, 51 Fla. 502, 41 South. Rep. 541.
Where the answer in an equity cause sets up affirmative averments of new matter not stated or inquired of, or not inseparably connected with matter stated or in[638] quired of, in the bill of complaint, and such new matter is in opposition to, or in avoidance of, the plaintiffs’ demand or claim of right, and a general replication is filed, such affirmative averments are of no avail to the defendant unless proven by independent testimony. Daniel’s Chan. Pl. & Pr. (6th Am: Ed.) p. 845, and authorities cited; Clements v. Moore, 6 Wall. (U. S.) 299; McCoy v. Rhodes, 11 How. (U. S,) 131.
The allegation in the bill of complaint that the defendant had mo right or title to the timber on the land is not denied, and the answer contains no general denial of the allegations of the bill of complaint. The only denial in the answer is as to the value of the land for the timber.
It is insisted that the narration of facts in the answer is a denial that the alleged right of the complainant set forth In the bill ever did exist, and is therefore responsive 'to the bill, even though the answer contains any number of independent facts and even though there is no direct denial in haec verba of any allegation of the bill of complaint. The argument is that the bill of complaint admits a severance of the timber from the land by a conveyance of the 'timber prior to the acquisition of complainant’s title to the land, therefore if the matter contained in the answer constitutes a defense, it is not because it avoids a prior existing right in the complainant, but because it denies the acquisition by the complainant of any right in the timber.
The instrument made a part of the bill of complaint as Exhibit “A” and referred to as a lease of the timber before complainant acquired title to the land, is the same instrument that is made a part of the answer as Exhibit “A” and therein referred to as a conveyance of the timber to 'defendant’s predecessor in title, before the com[639] plainant acquired title to the land, and such conveyance or lease is set out in the statement. Upon the face of this lease or conveyance it appears to have expired by its terms before suit was brought. See McNair & Wade Land Co. v. Adams, 54 Fla. 550, 45 South. Rep.
In equity causes denials in answers whether in haec verba or in other terms should be direct, positive and unequivocal, and should not be averments of matters that are distinct from or independent of allegations of the bill of complaint, unless such matters are inseparably connected with matters called for or required by the bill of complaint.
The defendant’s claim of fight as alleged in the bill of complaint is a title to the timber on the land acquired prior to the complainant’s acquisition of title to the land; but it is alleged that such right of the defendant expired by its terms before the suit was brought for injunction. This does not admit a right in the defendant. The answer admits the title of the complainant to the land as alleged, but avers that prior to the acquisition by the complainant of the title to the land the defendant acquired title to the timber on the, land by the conveyance or lease alleged in the bill of complaint, which lease, it is averred, has not expired because of other matters stated in the answer; and the answer avers that as complainant had notice of and recognized the defendant’s title to the timber -when complainant acquired title to the land, the defendant’s title to the timber is prior to and exclusive of the complainant’s title thereto. The lease adleged in the- bill of complaint does not upon its face clearly show a right in the defendant, but on the contrary shows the defendant’s right has expired; and as the other matters stated in the answer as to the meaning and effect of the lease are distinct from, independent of and not inseparably connected with the lease alleged in the bill of [640] complaint, such matters are not responsive to the bill and are not a denial of the right of the complainant as alleged. See Carter v. Bennett, 6 Fla. 214.
The result is the essential allegations of the bill of complaint are admitted by the answer, and the matters stated in the answer in defense or in avoidance of the complainant’s right are new matter not responsive to the bill and are not proven] the allegations of the bill do not show a right in the defendant to cut and remove the timber from the land,' but the allegations of the bill of éomplaint which are admitted by the answer do show a right in complainant that entitles him to a decree. Lainhart v. Burr, 49 Fla. 315, 38 South. Rep. 711.
The bill of complaint does not show a bona fide claim of right or title by the defendant to the timber on the land, and the answer makes no such showing of the defendant’s claim of right or title to cut and remove the timber from the land, as, in the absence of proof to sustain it, will relieve the court of equity of jurisdiction of the cause.
The decree is affirmed.
Shackleford, C. J., and Cockrell, J., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.