Houck v. Carolan

CROCKETT, J. — The plaintiff’s motion for judgment on the pleadings was properly denied. The answer is, perhaps, not as full and explicit as it should have been, in respect to the consideration paid by Carolan for the property, and may have been demurrable on this ground; but it is, at most, only a defective plea of a good defense, to be taken advantage of [693]by demurrer, which would have afforded an opportunity for amendment if the demurrer had been sustained. "When a defense, apparently good in substance, is defectively pleaded, the appropriate remedy is by demurrer, and not by a motion for judgment on the pleadings. The latter is the appropriate remedy when the pleading is fatally defective in substance.

Nor did the failure of the defendants, Swift and Huntoon, to verify the answer, furnish any reason why the motion should have prevailed as to them. If Carolan was a purchaser in good faith, for a valuable consideration, without notice of the fraudulent intent of Berger, he acquired a valid title which has vested in the other defendants; and he was certainly more competent than they to verify that portion of the defense which rested peculiarly within his own knowledge. The most that could in any event be claimed is that so much of the answer as sets up that Swift and the Huntoons were purchasers for value, in good faith, without notice, should he disregarded, because not verified by them. But if this portion of the answer wrns stricken out, they would still have a good defense, if the other facts alleged are true; and as to those, Carolan, who liad a personal knowledge of them, was certainly competent to verify them. The motion for judgment on the pleadings was therefore properly denied as to all the defendants.

One of the grounds of the motion for new trial was that the evidence did not justify the decision and judgment of the court; and we are urged to reverse the judgment on this ground. But on the question of notice to Carolan of the fraudulent intent of Berger, which is the most material question in the case, there is a direct conflict in the evidence. This is not denied by counsel; but they insist that the weight of evidence is so overwhelmingly in favor of the plaintiff as to require us to depart from our general practice in refusing to disturb the judgment on this ground when there is a substantial contract in the evidence. But if we were inclined, in any case, to depart from a practice now so firmly established, we would not he justified in doing it in this case. The testimony for the plaintiff, on the question of notice, is not of a very satisfactory character, and consists chiefly of the proof, by several witnesses, of conversations alleged to have occurred on separate occasions between Berger and Carolan.