Taggart v. Boldin

Le Grand, O. J., delivered the opinion of this court. Tlie bill filed in this case had for its purpose the procurement of a decree setting aside a deed from Daniel M. Stoup to Susan A. M. Taggart, and to compel Stoup to make a deed to the appellees. The facts set out and alleged in the bill may be thus stated: that on the 25th day of October 1852, a writ of attachment, on warrant was sued out of the circuit court in favor of John Hoye, against James Taggart, and levied by the sheriff, upon the same day, on lot No. 14, in Oakland, and duly returned to the January term, 1853, of said court, and judgment of condemnation then rendered; that on the 6th of December 1853, execution, issued upon this judgment, and the lot was purchased thereunder by the appellees. The bill then charges, that prior to the issuing of the attachment, one Townshend had agreed to sell the lot to James Taggart, and, in pursuance of said agreement, it was so sold, and a payment of a part of the purchase money actually made to Townshend by James Taggart; that it was agreed between Townshend, and Stoup, and Taggart, if Stoup would advance the remainder of the purchase money to Townshend, the latter should make a deed to him of the lot which he should hold until he was refunded the amount advanced, and accordingly the amount was advanced by Stoup.

It is alleged- that the appellant, Susan, -obtained from White & Co., debtors of her husband, James, $200, with which she repaid Stoup, who then deeded the properly to her in her own name. The object of the bill is to set aside this deed, and to procure an account of rent and profits, &c. The hill did not call for answer under oath, and, therefore, since the passage of the acts of Assembly of 1852, chapter 133, and of 1853, chapter 344, the answer of Mrs. Taggart is not ¹¹⁴ evidence in the cause, it not having been read as such by the complainants. The cause must, therefore, be determined by the averments of the bill and the testimony.

Although, since the passage of the acts to which we have referred, an answer not sworn to, and not asked by the complainant to be sworn to, is not evidence, yet it may be looked to for the purpose of ascertaining what is the matter in issue between the parties. As we understand the acts of 1852 and 1853, the bill and answer, when not sworn to, or where the answer is not read in evidence as such by the complainant, they are only to be regarded as the pleadings in the causé, exhibiting the points in dispute, like unto the pleadings in a suit at law. This is the only sensible interpretation, in our judgment, of which the acts of Assembly are susceptible. We, of course, do not include in these observations bills of discovery; they are expressly exempted by the language of the act of 1853, from the operation of its provisions, nor do we embrace the case where the cause is set down for hearing on bill and answer only.

On the latter point, see the case of Warren vs. Twilley, decided at this term, (ante 39.) With this explanation we proceed to state the nature of the defence set up in the answer of Mrs. Taggart. In substance it amounts to this: that her deceased father, George Rinehart, bequeathed to her a legacy of $200, in the year 1840, payable five years after his death; that prior to the year 1846, the executors of his last will paid over the legacy, which was by her husband, James, invested in land for her use; that this land was subsequently sold to one Thomas Bosley, about the year 1846, and the notes for the purchase money were given by Bosley, payable to Mrs. Taggart. These notes, with interest, in all amounting to $260, were paid by Bosley to James, the husband of the appellant, Susan; that a lot, the one in question, was purchased by her husband for her, from one Townshend, on which $100 was paid at the time, leaving due therefor $200, the whole purchase money being $300; that in March 1852, Townshend, Taggart and Stoup made an agreement by which it was stipulated Stoup should advance the residue of the purchase money, to wit, $200, and as security for its repayment to him, he was to re ¹¹⁵ eeive the deed for the property from Townshend, and to hold the same until the sum should be refunded; that the sum advanced by Stoup was repaid by money received from White & Co., by Mrs. Taggart, that firm being indebted to Mr. Taggart to the amount of $200; this sum was paid to Stoup, and iu consequence thereof, and in pursuance of the original understanding, Stoup made a deed of the property to Mrs. Taggart. It is this deed which the bill asks may be set aside.

Mrs. Taggart claims the $200 received from White & Co., and paid by her to Stoup, as part of her separate estate; that her husband had previously got that amount of her money, being a legacy left her by her deceased father. This statement of the averments of the bill and answer will sufficiently exhibit the points at issue between the parties. Townshend, from whom the lot was purchased, states that, the lot was purchased by James Taggart from him in April or May 1850; that he did not know Mrs. Taggart in the matter, and that Mr. Taggart did not tell him the purchase was for his wife. Stoup