(No. 7.)

Answer to bill in equity, (Haverley v. Becker, ante No. 1.) The formal parts, and such as would be regarded in a pleading under the Code as surplusage, or improperly stated, being in italics.

The answer of Gideon Becker, defendant, to the bill of complaint of Jacob Haverly and John Allen, Jr., complainants.

This defendant, now and at all times hereafter, saving and reserving to himself all manner of benefit and advantage of exception to the many errors and insufficiencies in the complainants bill of complaint contained, for answer thereunto, or unto so much or such parts thereof as this defendant is advised it is material for him to make answer unto, he answers and says, that he admits that on the 6th day of December, in the year 1842, one Abraham L. Dietz, mentioned in the complainants' bill of complaint, was the owner of a certain piece or parcel of land situate in the towns of Knox and Berne, of the value and description particularly set forth in the said bill of complaint. And this defendant further answering says, that he is ignorant and cannot set forth as to his belief or otherwise, whether the said Abraham L. Dietz was, on the said 6th day of December, 1842, indebted to the said com

1 A formal admission of a fact in an answer is altogether unnecessary; and indeed such admissions, it has been held, in one case, are improper. (See Gould v. Williams, 9 How., 51.) Every material allegation of fact not put in issue by a general or specific denial, is to be deemed admitted for the purposes of the action. (See Plead., 759, 764.) It has, however, been also held, that an admission may properly be made in an answer for the purpose of denying each and every allegation therein, except what is admitted. (Parshall v. Tillon, 13 How., 7.)

plainants in the sum mentioned in their said bill of complaint, or whether the said Abraham L. Dietz executed a bond and warrant of attorney to the said complainants, with the view of making said debt a lien upon said piece or parcel of land; or whether a judgment was entered on said bond and warrant of attorney; or whether the said Abraham L. Deitz and the said complainants understood, or intended, that by the execution of said bond and warrant, and the entry of the judgment thereon, the said debt should or had become a lien on said real estate, as in said complainants' bill is set forth.

And this defendant further answering, admits, that the said Abraham L. Dietz sold and conveyed the said land and premises in said bill of complaint described, by deed, bearing date the 9th day of February, 1843, to this defendant. That said deed was duly acknowledged by the said Abraham L. Dietz, and Evina his wife, on the 11th day of February, 1843, and delivered to this defendant; and that this defendant thereupon became, and still is, the owner of said land and premises.

And this defendant further answering, says, that at the time of the sale and conveyance of said real estate, by said Abraham L. Dietz to this defendant, this defendant was informed by said Abraham L. Dietz, that said land was encumbered to an amount between three and four hundred dollars; that such incumbrances consisted of rent due to Stephen Van Rensselaer and several judgments in favor of other persons; that it was stated by said Dietz at that time,

1 This form of denial, "that the defendant is ignorant of whether," &c., has been held defective and insufficient under the Code. (Wood v. Staniel, 3 Code R., 152.) The Code requires the denial to be general and specific, or "of any knowledge or information thereof sufficient to form a belief." As to the form and proper mode of making such denials, see Plead 431, et. seq.

that the complainants held a judgment against him, which was a lien upon said land, and that the amount thereof was less than $300, but the precise amount, he, the said Abraham L. Dietz, could not then state.

And this defendant further answering, denies, that at the time of such sale and conveyance as aforesaid, it was agreed between the said Abraham L. Dietz and this defendant, that this defendant should purchase the said farm and premises, from the said Abraham L. Dietz, subject to the lien of the judgment of the said complainants, or that this defendant should pay, satisfy or discharge the said judgments of the said complainants, or any part thereof. But, on the contrary, the agreement and understanding between the defendant and the said Abraham L. Deitz, at the time of the said sale and conveyance, was that this defendant should pay the said Abraham L. Dietz the stipulated price for said land and premises, and the said Abraham L. Dietz should pay, satisfy and discharge all liens and incumbrances subsisting on the said lands and premises.

And this defendant, further answering, denies, that the said Abraham L. Dietz sold and conveyed the said land and premises to this defendant, subject to the lien of the judgment of the said complainants thereon; or that an amount equal to the amount of said judgment of the complainants was, by agreement between the said Abraham L. Dietz and this defendant, retained by this defendant out of the purchase money for said land and premises; but on the contrary, this defendant paid or secured to be paid to said Dietz the full amount of the said purchase money.

And this defendant further answering, denies, that he ever executed a paper writing, or delivered the same so executed to the said Abraham L. Dietz, showing that the said deed of conveyance was taken or received by this defendant, subject to the lien of the judgment of the com

plainants, on the said farm and premises, or that this defendant would pay said judgment to the complainants, in lieu of the amount of such judgment to the said Abraham L. Deitz, towards the purchase money for said farm and premises, or any other paper writing of the like import or effect. And this defendant says, that he is ignorant and has not been informed, save by the complainants' bill of complaint, and therefore cannot state whether the said complainants or one of them, have or has been informed by said Abraham L. Dietz, that any such agreement in writing, as is mentioned in the said bill of complaint, has been lost, or whether the said Abraham L. Dietz has made diligent search for such writing or agreement, or whether the said Abraham L. Dietz has been unable to find the same.

1

And this defendant further answering, admits, that since the sale and conveyance of the farm and premises aforesaid, by the said Abraham L. Dietz to this defendant, the complainants have had conversations with this defendant upon the subject of the said judgment; but this defendant denies acknowledging in any conversation with the complainants, that said judgment was a lien upon said farm and premises, and denies that in any conversation with the complainants he acknowledged that he purchased said farm with a full knowledge of such lien, and denies that he acknowledged to the complainants, or one of them, that by the terms of the sale of said farm and premises, this defendant was to pay to the complainants their said judgment; and also denies that he ever promised the said complainants that he would pay or satisfy their said judgment. But this defendant has repeatedly said to the complainants, or one of them, when they have spoken to him in relation to said judgment, that if said judgment was a lien on said farm and premises, it would

1 This denial is also not in accordance with the Code, and is defective.

have to be paid, and that this defendant would pay it rather than have the farm sold at sheriff's sale.

And it was not until this defendant had repeatedly requested the said complainants to produce to him the proper certificate, to show that said judgment was a lien upon said farm and premises, and they neglected to do so, that this defendant suspected that it might not be a lien. That he afterwards ascertained that said judgment was not a lien on said land; and this defendant has not, since he discovered said judgment was not a lien, considered himself in equity or good conscience, bound to pay the same, and therefore has utterly refused since such discovery, to pay the same, or any part to the complainants.1

And this defendant further answering, denies that he has ever threatened to sell or convey said farm and premises for the purpose, or with the intent, to deprive the complainants of any equitable lien thereon, or in any manner to interfere with any equitable right of the complainants.2 But this defendant is desirous to sell the said farm and premises, and has therefore offered the same for sale, and declared his intention to sell the same; and has repeatedly offered to sell the same to the complainants, or one of them, and to give to him or them as good a title as this defendant received from said Abraham L. Dietz; provided the complainants, or one of them, would pay or secure to be paid to this defendant the sum of money which this defendant has actually paid to the said Abraham L. Dietz on said farm and premises, exclusive of any amount which has been retained by this defendant, or which the com

'This is manifestly irrelevant and immaterial.

2 It will be seen by reference to the complaint (No. 1) that most of the foregoing denials are in response to the interrogatory clauses of the bill. Those clauses being now not allowable in a complaint, the answer, of course, in a case like this, would be greatly abbreviated.