Belt v. Bowie

Alvey, C. J., delivered the opinion of the Court. The bill in this case seeks to obtain relief in respect to two separate and entirely distinct subjects-matter, and which would require different px-oceedings and different decrees to gratify the prayer. In the first place it seeks, by appropriate allegations, to obtain a decree for a sale of the real estate mentioned, of which William J. Belt died seized and possessed, for purposes of partition among the ³⁵² parties entitled, under section 99, of the 16th Article of the Code ; and, in the second place, it seeks the enforcement and foreclosure of a certain mortgage of the same real estate, held by the complainants as assignees of William B. Bowie, the mortgagee; the said mortgage having been made by William 3. Belt, the intestate, on the 18th of April, 1856, payable five years after its date.

The bill was filed on the 2nd of April, 1881, and prays for a decree for sale of the real estate mentioned, and that the proceeds of sale he distributed among the parties entitled, in proportion to their respective interests therein, after deducting from such proceeds of sale a sufficient sum to pay the alleged mortgage debt. After process served upon the resident, and publication made against the non-resident, defendants, an order, taking the bill pro confesso, Avas passed by the Court, on the 25th of August, 1881, against Charles R. Belt and Benjamin L. Belt, tAvo of the defendants, in default of appearance and ansAver; the other defendants having appeared and answered. It seems that there was testimony taken and filed in the cause, but it has been omitted from the record, and consequently this Court is confined to a review simply of the legal questions presented on the face of the proceedings^ irrespective"of the evidence. Under the 17th Equity Rule, as prescribed by the Judges of this Court, a defendant may, by special leave of the Court, at any time after the bill is taken pro confesso, and before final decree, either answer, plead or demur to the bill; but to entitle him to do so, he should, according to ■long established practice, assign some satisfactory reason in his application for leave, why the delay, and failure to appear and answer, have occurred, and the facts should be verified by his oath.

But the sufficiency of the reasons assigned are not reviewable by this Court, nor are the terms upon which the party may be allowed to answer, plead or demur. These are matters of practice properly ³⁵³ within the sound discretion of the Court or Judge to whom the application is made. That discretion, however, should always be exercised so as to prevent delay and to promote justice. By the adoption of the ITth Equity Rule, it was not designed in any manner to repeal or change the requirements of section 111, of Article 16 of the Code, but only to extend the provisions of that section to the right to plead or demur, as well as to answer under oath.

In this case, after the passage of the order pro confesso, and the taking and returning of testimony, the appellant made application, by petition, for leave to demur to the bill, upon the ground of multifariousness; and, upon that application, an order was passed giving the leave as prayed. A general demurrer was accordingly filed to the bill, with an affidavit that it was not interposed for delay. Upon hearing, this demurrer was overruled. The appellant then, by petition, asked leave to plead to or to answer the bill; and, by an order of the 12th of March, 1885, leave was given to answer or plead to the bill; the order requiring that such answer or plea should be filed forthwith.

The appellant accordingly answered, and by his answer he denied the right of sale of the real estate, for purposes of partition, and averred that the same was susceptible of division without loss or injury to the parties entitled; and he claimed that a commission should issue to make partition; and he also set up and claimed his right of election under the Statute of Descents. And as to that portion of the bill that sets up and seeks to enforce the mortgage assigned to the complainants, the appellant pleaded and relied upon the Statute