#### *Cropper v. Burtons and Others.

November, 1834,

Richmond.

Chancery Practice — Answer—Allegation Not Denied Is Not Admitted* — Appellate Practice — Remanding Cause — Want of Proof.† — A bond executed by B. to O. is assigned by C. to W. who brings suit on it against B. recovers judgment, and sues out execution without effect; then C. the obligee, flies bill in chancery in the county court against B. the obligor and others, to set aside a conveyance made by B. of land, on the ground that the conveyance is fraudulent and void as against B. ’s creditors ; in which bill he alleges, that he has paid his assignee W. the amount due on his judgment against B. and so claims to stand in W.’s place, and to' have the benefit of his judgment; the defendants answer, and deny the imputed fraud, but say nothing as to the allegation of the bill that plaintiff had paid W. the amount of his judgment against B. and there is no proof of such payment having been made ; the county court, holding the: conveyance fraudulent, sets the same aside, and decrees a sale of the whole land to satisfy the debt claimed by plaintiff: upon appeal to superiour court of chancery, chancellor reverses decree- and dismisses the bill, because there is no proof that plaintiff had paid W. the amount of his judgment against B. and so plaintiff does not appear to be a creditor by judgment: Held, 1. the decree of the county court is erroneous, because the material allegation of plaintiff’s payment to W. of the amount of his judgment against B. though *not*denied by the answer, was not thereby admitted-but ought to have been proved ; but 2. the decree of the chancellor is also erroneous in dismissing the bill for want of such proof — he ought to have retained the cause, or remanded it to county court, to give plaintiff opportunity to adduce the proof.

Quaere, whether decree of county court was not also erroneous, in directing a sale of the whole land, instead of a moiety only ?

Cropper exhibited a bill in chancery, in the county court of Accomac, against John Burton and Sarah his wife, and their infant children, Margaret, Samuel, Elizabeth, Catharine and George Burton, Thomas Bag-well, and Margaret Bagwell executrix of George Bagwell deceased,. — setting forth, that Cropper, in 1819, sold and conveyed to John Burton a parcel of land in Accomac, for 2500 dollars, payable the 1st Januarj” 1825, with interest from the 1st January 1820, for which Burton gave him his bond, and a *mortg'age of the land to secure payment thereof; that Cropper assigned the bond and mortgage to George Warner, and warranted that the money should be paid him within three months after it should become due; that after it became due, Warner brought suit on the bond against Burton, recovered judgment, and sued out an execution, on which the sheriff made return, that there were no *165effects of Burton, except what were claimed by George Bagwell and Theodore Adair, under bills of sale of record: that Warner also brought a suit in chancery against Barton, in the county court, to foreclose the mortgage of the land which Burton had bought of Cropper, and mortgaged to secure payment of the purchase money; and the court decreed a foreclosure of the mortgage, and a sale of the land to satisfy the debt; which sale was accordingly made, hut, owing to the depreciation of real propertj', the proceeds fell short of the debt about 2412 dollars, and this sum, with interest, remained yet due from Burton; and that Cropper had paid this balance to the executors of his assignee Warner. That, in the mean time, namely, in April 1822, Burton combining with George flag well (who was the father of his wife) to defraud Cropper, made a pretended sale of a mill and parcel of land he owned in Accomac, to Bagwell, for the nominal consideration of 2100 dollars, and conveyed that property to Bagwell; that this transaction was wholly fictitious and fraudulent, and no money was in fact paid by Bagwell to Burton; that Burton also, in August 1824, conveyed all his personal estate to Theodore Adair, in trust to secure a debt pretended to be due to Bagwell, and other pretended debts to other creditors; but there were in fact no such debts due, ana this conveyance was also fraudulent; that Bagwell never exercised any act of ownership whatever over the mill and land conveyed to him by Burton, who continued in uninterrupted possession and enjoyment thereof; that Bagwell had since died, having by his will devised and bequeathed the mill and land conveyed to him by Burton in April 1822, and all his interest in the trust subject conveyed to Adair by the deed of August 1824, to Thomas Bagwell, *upon trust to apply the profits thereof to the use of Sarah the wife of John Burton for life, remainder to her children, with liberty to the trustee to apply part of the profits, at his discretion to the maintenance of John Burton himself. Copies of the conveyance of Cropper to Burton, the mortgage of Burton to Cropper, the records of the judgment recovered by Warner against Burton on his bond, and of Warner’s suit in chancery to foreclose Burton’s mortgage, the conveyances of Burton to Bagwell, and to Adair, Bagwell’s will, and a statement of the balance of the debt marked A. were referred to in the bill, as therewith exhibited, and to be taken as part thereof. And the prayer of the bill was, that the conveyances made by Burton to Bagwell and to Adair, should be set aside as fraudulent, and the property therein conveyed subjected to the debt due to Cropper.

John Burton, in his answer, alleged, that in the contract of sale between Cropper and him, it was expressly stipulated, that Cropper should take a mortgage of the land itself to secure the purchase money, and if that should prove insufficient, yet Burton should be exempt from all personal responsibility ; and that Cropper had obtained a bond for the purchase money from him by fraud. That he had sold the mill and the land thereto adjoining to Bagwell, at a public sale, at which Cropper was present and a bidder; that the 2100 dollars which Bagwell gave for it, was its fair value, and that this was a bona fide sale; and that his conveyance to Adair for the benefit of his creditors was also a real bona fide transaction. And the answer of Sally Burton (the wife of John) confirmed the allegations of her husband’s answer, as to the terms of the contract between him and Cropper, But there was no proof whatever to sustain these allegations.

The answer of the infant children of Mrs, Burton, was put in by a guardian ad litem appointed for them by the court, and it disclaimed all knowledge on the subject.

The answer of the executrix of George Bagwell also disclaimed all knowledge on the subject. The trustee Thomas Bagwell did not answer; and as to him the bill was taken pro confesso.

*The defendants also put in a demurrer to the bill, on the ground, that the exhibits therein referred to and made part thereof, were not in fact filed with the bill. All the exhibits were in the record (except the statement A. which was never filed), but whether they were filed with the bill, or after the demurrer was put in, did not appear.

Depositions of witnesses were taken and filed by the plaintiff, to prove, that the conveyance of the mill &c. made by Burton to Bagwell, in April 1822, was wholly fictitious, and that it was a fraudulent contrivance devised by the parties, for the purpose of hindering Cropper from recovering the debt which Burton owed him, and of securing the property to Burton’s family; and in the opinion of the county court, the allegation of fraud was proved by the evidence. But there was no proof adduced by the plaintiff, that he had paid the balance of the debt to his assignee Warner, as he alleged in his bill, so as to entitle himself to the benefit of Warner’s judgment against Burton ; such proof being probably regarded as unnecessary, because that allegation of the bill was nowise questioned in the answers.

When the cause was called for hearing in the county court, the counsel of the defendants prayed a continuance, on the ground of his own ill health; but the plaintiff urged the hearing, and the court refused the continuance; and thereupon, the defendants’ counsel withdrew from the cause. And the cause coming on for hearing, the court, without taking any notice of the defendants’ demurrer to the bill, made an interlocutory decree, setting aside the conveyance of the mill and land, executed by Burton to Bagwell in April 1822, for fraud; adjudging, that Burton should pay Cropper the balance of 2412 dollars due him, with interest and costs ; and directing, that the whole of the property conveyed by the fraudulent deed of Burton to Bagwell, should be sold to pay the debt, interest and costs. From this decree, the defendants (except John Burton and wife) appealed to the superiour court of chancery of Williamsburg.

The chancellor held, that the decree was erroneous, because Cropper was not himself a creditor of John Burton *by judgment, and was not entitled to be so considered on the principle of subrogation to the benefit of Warner’s judgment, *166since he had not adduced any proof that he had paid the debt to Warner or his representative; and, therefore, he reversed the decree of the county court, and, proceeding to make such decree as that court ought to have made, dismissed the bill with costs. And then Cropper appealed to this court.

Leigh, for the appellant,

submitted, that the fact of the payment by Cropper to Warner’s representative, of the balance due on his judgment against Burton, being alleged in the bill and not denied in the answers, proof of it was unnecessary; Scott & ux. v. Gibbon & Co., 5 Munf. 89, 91, 2. But, supposing such proof was necessary, yet it was obvious, the error of the county court consisted merely in the opinion that it was not so; and the chancellor, reversing the decree for that error, instead of proceeding to dismiss the bill, should have retained the cause, or remanded it to the county court, in order that the proof might be supplied, and Warner’s representative made a party.

Stanard, for the. appellees,

denied, that proof of facts alleged in a bill was dispensed with, in any case, by the failure of the defendant to deny them in his answer. But, in this case, there were infant defendants interested; certainly, proof was necessary, of every fact material to the relief sought against them. The appellant had no right to complain; he urged the hearing in the county court, when the counsel for the appellees was so unable to attend to his duty, that he was obliged to withdraw from the cause; and he must take the consequence of his own precipitation. It was his own fault, that he brought his cause to a hearing, without proof of the fact on which his claim to the relief he sought, his right, indeed, to ask the aid of the court, depended; and it was not the duty of the court to give him counsel, or to guard him against his own mistakes.

Another point was argued, but the court gave no opinion upon it, and, therefore, it is merely mentioned; namely, ^Whether the decree of the county court was not erroneous in directing the whole of the mill and land thereto adjoining, to be sold to satisfy the debt? Whether it ought to have gone farther than to subject the moiety, which might have been extended on an elegit, if the fraudulent conveyance had not stood in the way?

*

Chancery Practice — Answer—Failure to Respond to Material Allegation of Bill — Effect.—Where the answer is not responsive to a material allegation of the bill, the plaintiff may except to it as insufficient, or may move to have that part of the bill taken for confessed, and an order of court to that effect served on the defendant; hut, if he does neither he shall not, *on the trial,*avail himself of any implied admission hy the defendant. Dangerfleld v. Claiborne, 2 Hen. & M. 17. In Clinch River Mineral Co. v. Harrison, 91 Va. 131, 132, 21 S. E. Rep. 660, it is said that this rule has been followed in all reported cases in Virginia where the question has arisen; and Argenbright v. Campbell, 3 Hen. & M. 165, Coleman v. Lyne, 4 Rand. 454, *Cropper v. Burtons,*5 *Leigh*426, 432, and Miller v. Argyle, 5 Leigh 460, are cited to the point.

See further, monographic *note*on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.

†

Appellate Practice — Remanding Cause — Want of Proof. — Where an inferior court has considered the proofs as full, and the appellate court regards them as defective, but sees clearly from the facts in the case, that the proof may be supplied, and the party who has failed to produce it has been surprised or lulled into a false security, justice requires that the case should be sent back for further proceeding. Tucker, P., in Miller v. Argyle, 5 Leigh 468 , 469, citing the principal case, and Duff v. Duff, 3 Leigh 523, as containing his views in relation to this matter.

See principal case also cited in Watkins v. Carlton, 10 Leigh 573, and in Cunningham v. Smithson, 12 Leigh 66, in which it is said by Auden, J., that the principal case was decided upon the peculiar circumstances attending it and had no application to the case at bar.

See further, monographic *note on*“Appeal and Error” appended to Hill v. Salem, etc., Co., 1 Rob-263.

TUCKER, P.

The chancellor was right in reversing the decree of the county court, because there was no evidence of the payment by the appellant of the debt to Warner. Yet I am of opinion, that it was too rigorous to proceed to enter a dismissal of the bill, under the circumstances of the case. The bill distinctly alleged the payment; it was not denied by the adult defendants; and it can only be considered as put in issue by the general and sweeping denial of the answer of the guardian ad litem for the infants, filed in the customary form. Had the objection been made in the county court, the evidence might have been supplied, and Warner’s representative might have been made a party, as indeed he ought to have been. But no objection was made. The court itself deemed the proofs sufficient; and by its very decree in the plaintiff’s favor, it entrapped the appellant, if it be really true that the appellate court was bound to dismiss his bill, out and out. Such a course is certainly not calculated to further the purposes of justice, and should therefore be discountenanced. The chancellor, in reversing the decree, should have sent the .cause back, with directions, that Warner should be made a party and an in.quiry instituted as to the payment of the judgment by Cropper. In the case of Duff v. Duff’s ex’ors, 3 Leigh 523, I have explained my views of the spirit that ought to govern the courts in cases of this kind.

CABELL, J.

I concur in reversing the decree, and remanding the cause, with directions that Warner’s representative shall be made a party, and an inquiry instituted as to the paj’ment of the judgment by Cropper.

*CARR, J.

The decree of the county court setting aside Burton’s sale and conveyance of the mill &c. to Bagwell, and ordering a sale thereof to satisfy the plaintiff’s claim, was certainly erroneous, in the actual state of the case. In the first place, the demurrer should have been disposed of. It was, I think, well taken ; for an exhibit made part of a bill ought always to be filed with it, and the clerk certifies that exhibit A. was never filed; but whether well taken or not, the demurrer ought to have been disposed of. In the second place, the plaintiff failed in proving the very gist of his bill. He could have no right whatever to-file this bill, unless he had satisfied the claim of Warner, the assignee of the bond. Without an allegation of this kind, his whole bill would have been demurrable; for as the chancellor correctly says, he would have shewn no right either as a judgment creditor, or by way of substitution, to Warner, to question the fairness of the deed. With respect to the general position, that all the allegations of a bill, not expressly denied by the answers, must be taken as admitted, I consider it incorrect and mischievous. When Scott v. Gibbon was referred to in the argument, it struck me, that the court had, in some case, since I was a member, had the subject before itj and I find, that in Coleman v. Lyne’s ex’or, 4 Rand. 454, the general proposition was disapproved, and the reasons and authorities given. It was added, that “one or two-cases were cited from our reports as countenancing the idea of the counsel; but they will be found to be cases (as in Page v. Winston, 2 Munf. 298,) in which the allegation in the bill was, that some fact did not exist, or that something was not done (negatives, which could not be proved), or cases where the documents and circumstances in the cause, proved prima facie,, that the fact alleged and not denied, was true, as in Scott v. Gibbon.” In the case before us, there could be no ground for the application of the principle; for the parties chiefly interested, and claiming under the sale, are infants, whose guardian could make no admission to their injury, and did not attempt it. It is clear, then, that the decree of the county court was properly reversed. *But it was in-. sisted, that the chancellor, instead of dismissing the bill, ought either to have retained it, or sent it back, to afford *167the plaintiff an opportunity of _ furnishing proof that he had satisfied the judgment of Warner. As a general rule, it would not seem to be the business of courts to exercise this kind of guardianship over persons sui juris, and able to take care of themselves; nor have we any evidence in this record, that the court was moved to retain or send the cause back, or that the party avowed his ability to produce the proof. I have, therefore, felt some doubt, as to reversing on this ground; but as my brethren think this the best course, I shall not gainsay it. As to the sale of the whole mill &c. out and out, as the chancellor has not considered it, I shall not now give any opinion on the point.

Decree reversed, and cause remanded.