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defendant, if he intends to take advantage of it, must show the matter which creates the objection by plea or answer. If he neither so demurs nor pleads, but answers fully to the merits of the bill or demurs on some other ground, he is held to waive the objection that he might have pleaded. A demurrer should be so stated as to apprise the court of the real objection. A demurrer to a bill for multifariousness, like a demurrer for a misjoinder at law, goes to the whole bill, and if the demurrer is sustained, the bill will be dismissed as to the party who demurred.70 On demurrer to the whole bill, if the bill be good in part, the demurrer should be overruled." As a general rule a demurrer is waived by answering to the merits, except in jurisdictions where defendant is permitted to demur and answer at the same time.73 The insertion of irrelevant matter in a complaint for equitable relief is not a ground of demurrer. The remedy is by motion to strike it out. A demurrer admits the truth of the allegations of fact contained in the pleading demurred to.75

Madsen, 87 Wis. 19, 57 N. W. 965, defendant, upon a written general demurrer, may avail himself of the objection that plaintiff has an adequate remedy at law.

67. Thomas v. McEwen, 11 Paige (N. Y.), 131, or he may insist upon it at the hearing; Schwarz, Rosenbaum & Co. v. Barley, 142 Ala. 439, 38 So. 119; Tappan v. Evans, 11 N. H. 311; Walsh v. Byrnes, 39 Minn. 527, 40 N. W. 831.

68. N. Y.-Loomis v. Tifft, 16 Barb. 541.

Ala.-Mountain v. Whitman, 103 Ala. 630, 16 So. 15.

Ky.-Barton v. Barton, 80 Ky. 212; Shaw v. Shaw, 15 Ky. L. Rep. 592, 24 S. W. 630.

Minn.-Welch v. Bradley, 45 Minn. 540, 48 N. W. 440.

N. H.-Tappan v. Evans, 11 N. H. 311.

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71. Vanderveer v. Stryker, 8 N. J. Eq. 175.

72. Gordon v. Reynolds, 114 Ill. 118, 28 N. E. 455.

73. Smith v. Kelley, 56 Me. 64; Hartshorn v. Eames, 31 Me. 97.

74. Bank of British North America v. Suydam, 6 How. Pr. (N. Y.) 379.

75. Riley v. Carter, 76 Md. 581, 25 Atl. 667, 35 Am. St. Rep. 443, 19 L. R. A. 489; Large v. Bristol Steam Towboat, etc., Co., 2 Ashm. (Pa.) 394.

On a demurrer to an answer, the court may determine the sufficiency of the complaint. Holland v. Grote, 56 Misc. Rep. (N. Y.) 370, 107 N. Y. Supp. 667.

§ 21. Cross bill.—A defendant may file a cross bill either for discovery or for relief, as where he seeks to impeach the judgment which is the foundation of the plaintiff's claim.76

§ 22. Plea or answer in general. To so much of the bill, in an action to set aside a conveyance as fraudulent as against creditors, as is material and necessary for the defendant to answer, he must speak directly, without evasion, not by way of negative pregnant. He must not answer the charges merely literally, but must confess or traverse the substance of each positively and with certainty, and particular precise charges must be answered particularly and precisely, not in a general manner. To a fact in defendant's own knowledge, he must answer positively; to facts not within his knowledge, he must answer as to information and belief, and not as to information or hearsay merely, without stating belief. An answer denying all knowledge and belief of the matters charged in the principal allegations of the bill, or a general denial of the fraud and allegation of good faith without the facts showing good faith, or a denial of fraudulent intent without a denial of notice of fraudulent intent, is insufficient." An answer alleging that defendants

76. Story Eq. Pl., § 389; Buchanan V. Cunningham, 10 Grant Ch. (U. C.)

513.

77. N. Y.-Churchill v. Bennett, 8 How. Pr. 309; Cunningham v. Freeborn, 3 Paige, 557; Woods v. Morrell, 1 Johns. Ch. 103; Leaycraft v. Dempsey, 15 Wend. 83; Smith v. Lasher, 5 Johns. Ch. 247.

Ala.-Noble v. Gilliam, 136 Ala. 618, 33 So. 861; Freeman v. Stuart, 119 Ala. 158, 24 So. 31.

Colo. Stephens v. Parvin (1904), 78 Pac. 688.

Fla.-Barrow v. Bailey, 5 Fla. 9; Hunter v. Bradford, 3 Fla. 269.

Ky.-Aulick v. Reed, 104 Ky. 465, 20 Ky. L. Rep. 653, 47 S. W. 331;

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were bona fide purchasers, not privy to the fraud, and believed the title to be good, because they did not know or believe the deeds to be fraudulent, is insufficient to dissolve an injunction, staying ejectment.78 Although the answer should be full, clear, and specific as to all material charges in the bill, the records of the court should not be filled with long recitals, or with long digressions in matters of fact, which are altogether unnecessary and totally immaterial to the matter in question. Such matter is redundant.79

§ 23. Voluntary conveyance.—Where a suit is brought to set aside an alleged fraudulent conveyance on the ground that there was no consideration for the conveyance, the grantee as defendant must not only deny that there was no consideration, but must allege and prove that there was a valuable consideration. and state affirmatively in what the consideration consisted, and when and how it was paid.80 And where the fraud of the grantor clearly appears, the purchaser must show himself a bona fide purchaser by alleging and proving that at the time of such payment he had no notice of the grantor's fraudulent intent and that he acted in good faith. It is not for the plaintiff to show the contrary. The grantees in a fraudulent conveyance which is set aside in an action by a creditor of the grantor cannot be

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where the complaint does not show on its face that such period of limitation has expired, and the answer does not allege facts establishing such expiration. Holland v. Grote, 56 Misc. Rep. (N. Y.) 370, 107 N. Y. Supp. 667.

78. Schemerhorn v. Merrill, 1 Barb. (N. Y.) 511; Ward v. Van Bokkelen, 1 Paige (N. Y.), 100; Apthorpe v. Comstock, Hopk. (N. Y.) 143; Roberts 1. Anderson, 2 Johns. Ch. (N. Y.) 202; Bomberger v. Turner, 13 Ohio St. 263, 82 Am. Dec. 438.

79. Harrison v. Perea, 168 U. S.

311, 18 Sup. Ct. 129, 42 L. Ed. 478; Wood v. Mann, 30 Fed. Cas. No. 17,952, 1 Sumn. 578.

80. Noble v. Gilliam, 136 Ala. 618; Watts v. Burgess, 131 Ala. 333, 30 So. 868; British, etc., Mfg. Co. v. Norton, 125 Ala. 522, 28 So. 31; Gamble v. Aultman, 125 Ala. 372, 28 So. 30; J. B. Brown Co. v. Henderson, 123 Ala. 623; Weber v. Rothchild, 15 Or. 385, 15 Pac. 650, 3 Am. St. Rep. 162.

81. McKee v. West (Ala. 1904), 37 So. 740; Killian v. Cox, 132 Ala. 664, 32 So. 738; Weber v. Rothchild, supra.

substituted to the rights of mortgagees whose liens they discharged, in the absence of a pleading alleging the facts entitling them to such relief.82

§ 24. Purchaser from fraudulent grantee.—In order to entitle a person to protection as a bona fide purchaser or mortgagee, without notice, he must deny notice fully and particularly, whether the defense be set up by plea or answer. He must deny notice positively, not evasively, though it be not charged in the bill, and every fact from which notice may be inferred.83

§ 25. Exempt property.-Where the defendant seeks to defeat an action to set aside a conveyance as fraudulent as against creditors, by showing that the property conveyed was exempt and that the conveyance therefore was not fraudulent, the answer must set forth all the facts necessary to show that the property was exempt and that the right of exemption existed at the time the alleged fraudulent conveyance was made. An allegation that such right existed at the time the answer was filed is not sufficient. A creditor's complaint to set aside a fraudulent conveyance of land need not allege that the land was not exempt from execution, such exemption being a matter of defense.85 It has been held, however, that evidence that the property conveyed was held by the grantor as a homestead or was otherwise exempt is admissible under a general denial.

82. Campbell v. Trosper, 108 Ky. 602, 22 Ky. L. Rep. 277, 57 S. W. 245. See also Reimbursement, indemnity and subrogation, chap. XIV, § 40, supra.

83. Lowry v. Tew, 3 Barb. Ch. (N. Y.) 407; Balcom v. New York Life Ins., etc., Co., 11 Paige (N. Y.), 454; Harris v. Fly, 7 Faige (N. Y.), 421; Manhattan Co. v. Evertson, 6 Paige (N. Y.), 457; Gallatian v. Cunningham, 8 Cow. (N. Y.) 361; Brinkerhoff v. Lansing, 4 Johns. Ch. (N. Y.)

And evidence that the

332; Frost v. Beekman, 1 Johns. Ch. 288; McKee v. West (Ala. 1904), 37 So. 740; Miller v. Fraley, 21 Ark. 22; Stanton v. Green, 34 Miss. 576.

84. Phoenix Ins. Co. v. Fielder, 133 Ind. 557, 33 N. E. 270; Cincinnati Tobacco Warehouse Co. v. Matthews, 24 Ky. L. Rep. 2445, 74 S. W. 242. 85. State v. Parsons, 147 Ind. 579, 47 N. E. 17, 62 Am. St. Rep. 430.

86. Starke v. Lamb (Ind. 1906), 78 N. E. 668, 79 N. E. 895; Hobson v. Noel (Ky. 1906), 97 So. 388; De

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property was exempt is admissible to rebut the charge of fraud.87 Where plaintiff's title is attacked as obtained in fraud of creditors, he may show that the property was exempt from execution without having anticipated and avoided the attack by specially alleging such fact in his complaint.

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§ 26. Justifying seizure.-A pleader who seeks to justify the seizure of goods under legal process, notwithstanding a previous transfer, is not required to refer to the statutory provisions relating to fraudulent conveyances and transfers. It is sufficient to allege that the goods levied upon were the property of the person against whom the process was issued, or that he had a leviable or attachable interest therein.89 The portions of the statute of frauds that are waived unless pleaded, relate to contracts which although previously capable of valid proof by parol evidence are declared to be void unless in writing."

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8 27. Answers, denials, and admissions, as evidence.-A statement in a sworn answer, responsive to the material allegations or to a direct interrogatory contained in the bill, must be accepted as true, unless disproved, and the rule of equity practice is that the defendant's answer, under oath, expressly negativing the allegations of the bill can only be overcome by the evidence of two witnesses, or by that of one and corroborating circumstances equal to that of another," but this rule does not extend

weese v. Deweese (Ky.), 90 S. W. 256; Hibben v. Soyer, 33 Wis. 319. 87. Isgrigg v. Pauley, 148 Ind. 436, 47 N. E. 821.

88. Furman v. Tenney, 28 Minn. 77, 9 N. W. 172.

89. Dearing v. McKinnon Dash, etc., Co., 165 N. Y. 78, 58 N. E. 773, 80 Am. St. Rep. 708.

90. Dearing v. McKinnon Dash, etc., Co., supra; Sanger v. French, 157 N. Y. 213, 51 N. E. 979; Matthews v. Matthews, 154 N. Y. 288, 48

N. E. 531; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911.

91. N. Y.-Jacks v. Nichols, 5 N. Y. 178.

U. S.-Seitz v. Mitchell, 94 U. S. 580, 24 L. Ed. 179; Voorhees v. Bonesteel, 16 Wall. 16, 21 L. Ed. 268; Tobey v. Leonard, 2 Wall. 423, 17 L. Ed. 842; Hill v. Ryan Grocery Co., 78 Fed. 21, 23 C. C. A. 624.

Ala.-Birmingham Nat. Bank v. Steele, 98 Ala. 85, 12 So. 783; Marshall v. Croom, 52 Ala. 554.

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