Walker v. Buffandeau

Per Curiam. The action is to foreclose a mortgage executed by Buffandeau, deceased. With respect to the appellants (defendants Wise and Denigan), the allegation of the complaint is: “The defendants claim some right, title, interest, or estate in or to the said premises, subsequent however, to said mortgage and subject thereto.” To this appellants answered: “ Defendants admit

that they have an interest in said premises by way of mortgage from E. B. Buffandeau, dated the 18th day of April, 1877, to secure a promissory note,” etc. “And they further allege they have no information or belief sufficient to enable them to answer the allegation of the complaint, that the claims of the defendants are subsequent, however, to said mortgage to plaintiffs and subject thereto, and so deny that their mortgage is subsequent or subject to the mortgage of said plaintiffs.”

It is said by respondents that the portion of the answer above quoted raises no issue. It is urged, in the first place, the defendants could not base a denial that their interest, in the mortgaged premises, was subsequent and subject to the lien of plaintiffs’ mortgage, upon an alleged ignorance of the facts. It has been held, very often, that where the fact alleged is such as that its existence or non-existence must, from its nature, be [314]known to the opposing party, such party cannot be permitted to plead ignorance, or deny “upon information and belief.” In such cases the party alleging a matter as a fact is entitled to an explicit denial, or to an admission. (Humphreys v. McCall, 9 Cal. 62; Brown v. Scott, 25 Cal. 189; Richardson v. Wilton, 4 Sandf. 708; Sherman v. N. Y. Central Mills, 1 Abb. Pr. 188; Chapman v. Palmer, 12 How. Pr. 37; Fales v. Hicks, 12 How. Pr. 154; Hance v. Rumming, 2 Smith, E. D. 48; Kelcham v. Zerega, 1 Smith, E. D. 553.)

It is said by respondents, in the second place, that the answer is evasive; it is not an express denial of the fact alleged. It is insisted that the answer does not even deny knowledge of the verity or falsehood of the averment actually made, but sets up a supposititious averment, and then alleges defendants’ ignorance with respect to such averment; that, while the complaint alleges any right, or title, or interest, or estate, which defendants may have in the premises, to be subject or subordinate to plaintiffs’ lien, the answer only declares defendants to be ignorant of the truth of a pretended averment “that the claims of the defendants are subsequent,” etc.