Wyckoff v. Sniffen — 2 Edw. Ch. 581

Majority

p. 581

Wyckoff and others v. Sniffen and others.

February 22 1836.

Headnote

A defendant setting up in his answer that lie is a bona fide purchaser without notice, must answer all allegations which tend to show his deed to be only colorable and fraudulent.

The complainants had filed a judgment-creditors bill against their debtor John Boyd ; and made John Sniffen a party, charging the latter with holding real estate belonging to the former and adding allegations going to impeach Snifffen’s title.

The defendant Sniffen, by an answer, set up his being a bona -fide purchaser, without notice : but he didrnot answer as to any thing in the bill which went to impeach his title. Forty-eight exceptions were taken to the answer. The master allowed the whole of them ; and a general exception was taken by him to the report of the master.

Mr. Mulock, for the defendants and in support of the exception.

Mr. Clarkson, for the complainants.

29 February.

Allowing the case of a bona fide purchaser without notice to form an exception to the general-rule that a defendant who undertakes to answer must answer fully: Cuyler v. Bogert, 3 Paige’s C. R. 186, yet it is very clear he must answer as to all the circumstances alleged in the bill to defeat his title in addition to the fact of his being a purchaser for a valuable consideration, without notice. Here, the defendant John Sniffen has not so answered. The bill contains a number of allegations of facts and circum

p. 582

stances to show that his deed is merely colorable and fraudulent as to creditors and of all these it seeks a discovery from him. This discovery he is bound to make. He cannot excuse himself any more than he could do if he had set up the facts by way of plea instead of answer.

The exceptions taken to the answer go to this point—as well as to matters of minor importance, which, perhaps, he might be excused from answering. The master has, however, allowed the whole of the exceptions, forty-eight, in number. One general exception is taken to his report; but as the report is at least correct in part, a single exception to it- on the ground of its being altogether wrong, cannot be allowed.

Exception to the master’s report overruled, with costs.