The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1897-07-21

The answer of Cornelius Smith and
son, John Stanley Smith. who are de-
PENDANTS in an ejectment suit brought
by Joseph Fellows, was filed yesterday
by James Mahon, attorney for the de-
PENDANTS. 1t is as follows:
To the Honorable Judges of Said Court:
The Joint and several answers of Corne-
Illus Smith and John Stanley Smith, de-
PENDANTS. to the plaintiffs bill of COM
plant.
1. The first paragraph of plaintiffs bill
is true, excepting IS to the value Of the
property, of which the defendants are not
informed.
2. The second paragraph is true.
3. The third paragraph, excepting the al-
legation that the plaintiff was at any
time in actual want, is true.
a. The fourth paragraph, excepting so
far as II alleges the giving of the judgment
note, and the consideration therefor, and
its entry, to No. 1902 october term, 1889,
Is not true, as therein alleged. 1t is true,
according to the written agreements made
and executed between the plaintiff and
Cornelius Smith, that upon the recovery
of the property described in the bill, he
would receive upon the said note a credit,
in all amounting to the sum of sixty-elght
hundred dollars. But II is not true, that
he would receive credit of said amount
for his conveyance to Cornelius Smith OF
an undivided half part of said property
The tenor and effect of said written agree
ment, reference being thereto had, will
more fully appear, Is that upon the said
conveyance to the said Cornelius Smith,
the plaintiff would receive credit on
said note of five thousand dollars and af-
terwards upon his conveyance to John
Stanley Smith, he would receive q credit
in the sum of eighteen hundred dollars
And therefore, the total amount of credit
agreed to be given on the said note for
the above stated conveyances, was sixty
eight hundred dollars.
THE CONSIDERATION.
s. That the consideration of the said
conveyance, dated September 49, 1891, to
John Stanley Smith, was the keeping of
| the plaintiff from the date of said convey
ance until the termination of his action
of ejectment for the recovery of the said
property, and the payment to him of two
| thousand dollars, without interest, by ac-
| ton of ejectment. That by agreement of
plaintiff and Cornelius Smith the said
two thousand dollars was to be paid by
| said Smith, by allowing the plaintiff a
! credit on the said note in the sum of
eighteen hundred dollars, and credit
for two thousand dollars. which sum said
Smith had prior to the said conveyance
advanced to the plaintiff.
| 6. That the entire consideration for tha
| said conveyance, dated September 10, 1921,
| has been paid in the manner following to
wit BY Cornelius Smith advancing prior
| to said conveyance to the plaintiff the
| sum of two hundred dollars BY the
plaintiff claim and receiving a credit on
| said note, of the said eighteen hundred
| dollars. By Cornelius Smith rooming,
| boarding and clothing the plaintiff from
| the date of said conveyance to about
/ Tril not pt tNun nvI "
| three dollars per month.
| Z. That plaintiffs deed to John Stanley
| Smith for the property in question, was
| recorded on the fifth day of February,
| 1897 That on the sixth day of February,
| 1884, the plaintiff in the case of Corne-
| hus Smith VS.. Joseph Fellows, No. 764,
September term, 1894. which case was an
| amicablo revival of the judgment en-
| tered on said note. filed in said case a pc
| tition wherein he claimed credit on said
| judgment, in the sum of $780, and ten
| dered to Cornelius Smith the sum of $42t90
as the balance due on said judgment, ani
paid the same into court as aforesaid, on
which he obtained a rule to show cause
| why the judgment should not be marked
| satisfied. That the tender as aforesaid
was continued, and on the third day Of
July, 1897, the tender was accepted and
paid, and the credits on said note as
| claimed in plaintiffs petition allowed.
| Reference to the said case being had Will
more fully and at large appear.
| s. That the action of the plaintiff In
forcing the defendants by an adverse pro-
ceeding, to pay him the balance of the
| consideration for the said property by
means of having a credit of 81, 800 allowed
on the judgment. constitutes an election
on the part of the plaintiff to take the
consideration and not the property by
| which he is estopped and precluded from
a recovery of the said property.
THAT FIFTH PARAGRAPH.
O. The fifth paragraph is not true as
| therein alleged. The proposition to con-
vey and undivided half of his interest in
| the balance OF his property for his keep
ing until the termination of his action of
ejectment was first made by the plaintiff,
and by Cornelius Smith rejected as made.
| Afterwards the following proposition was
| agreed on. The plaintiff would convey to
| John Stanley Smith an undivided half in
| terest in the balance of said property,
| in consideration of Cornelius Smith al
lowing his credit for $500, money already
advanced to him, and also allowing him a
credit of $lS0O on the judgment note,
and to keep, support and clothe him.
washing included, until the termination
of his acuon OF ejectment. And defend
ants aver that the SIS per month was
spoken of, only as fixing limit on the eX-
penditures of the Plaintiff for each month
for board. The deed was drawn in accord
ance with the aforesaid agreement, the
plaintiff read it over, and without any OBJ
lection signed, acknowledged and deliY-
cred it to Cornelius Smith.
10. The sixth paragraph is not true as
therein alleged. All money paid by Cor
nelius Smith to the plaintiff, on his de-
mand, from September Is, 1891, to March,
1897, was paid on account of the agree
ment and conveyance of September To-
1891. The said agreement and conveyance
was not rescnded, and Cornelius Smith
did not agree to rescind or destroy said
deed of conveyance. TIE facts are as fol-
lows: About two or three months after
the verdict in the action of eJectment
which was on January 26 1892, rendered
against the plaintiffs, Cornelius Smith
! said to the plaintiff, that for him to carry
the case to the Supreme court, and sup,
port him was too much of a load for him
; to carry; that he had told him that his
son in the west was rich; that II he would
go to his son in the west and II hC
would keep him until the termination Of
the action of ejectment, he would give
him the money to go, and have JOIN
Stanley Smith deed back TO him the prop
erty he conveyed to him Plaintiff re