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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 complainants, 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.
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
· 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.
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.? 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.
? 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.
plainants pretend has been so retained, of the purchase money for said premises, to meet the said judgment of the complainants, adding to such sum of money so paid to : the said Abraham L. Dietz by this defendant, the legal interest from the 11th day of February, 1843, and deducting therefrom the income of said farm from said last mentioned day; and this defendant now again repeats said offer to sell and convey the said farm and premises to the complainants, upon the terms above set forth. .
And this defendant says, that he is advised and believes, that by section 25, of chap. 386 of the Session Laws of 1840, it is enacted that no judgment or decree, after the first day of June, 1840, shall be a lien upon real estate, unless the same shall be docketed in books to be provided and kept for that purpose, by the county clerk of the county where the lands are situate. And this defendant therefore insists, that inasmuch as said judgment was not so docketed before the conveyance of the said land and premises, by said Abraham L. Dietz to this defendant, this honorable court is not authorized by any principle of law or equity, or under any circumstances, to declare said judgment to be a lien on said land and premises.
And this defendant submits to this honorable court, that all and every of the matters in the said complainants' bill mentioned and complained of, are matters which may be tried and determined at law; and with respect to which, the said complainants are not entitled to any relief from a court of equity. And this defendant hopes he shall have the same benefit of this defence, as if he had demurred to the said complainants' bill.?
| This is also clearly superfluous and immaterial, and would, no doubt, be now struck out of a pleading as irrelevant and redundant.
? A demurrer and answer are not properly joined in the same pleading. If a want of jurisdiction appears, or the complaint do not contain
And this defendant denies all unlawful combination and confederacy in the said bill charged, without that, that any other matters or things material or necessary for this defendant to make answer unto, and not herein and hereby well or sufficiently answered unto, confessed or avoided, traversed or denied, are true, to the knowledge or belief of this defendant. All which matters and things this defendant is ready to aver, maintain and prove, as this honorable court shall direct, and humbly prays to be hence dismissed, with his reasonable costs and charges in that behalf most wrongfully sustained.
Common law plea of the general issue, accompanied by two
special pleas in bar to declaration. (Radcliff v. Mayor of Brooklyn, ante No. 3.) The parts of the special pleas in italics are formal, and should be omitted in a pleading under the Code.
And the said defendants, by Nathaniel F. Waring, their attorney, come and defend the wrong and injury, when, &c., and say that they are not guilty in manner and form as the said plaintiffs have thereof declared against them, and of this they put themselves upon the country, and the said plaintiffs, likewise, &c.
facts sufficient to constitute a cause of action, the objection may be raised at any time, without taking notice of it in the answer. For any other cause a demurrer must be interposed before answer.
1 This is the formal plea of the general issue which is now abolished; its place being, in some respects, supplied by the general denial of the Code. (See Plead., 400-406.)