Mead v. Day

Charmers, J.,

delivered the opinion of the court.

The bill was filed to cancel a tax-deed, held by the defendant, which the complainant alleged was a cloud upon his title. The bill averred title in the complainant by virtue of a purchase of the land at a sale in bankruptcy, under proceedings in the United States District Court for the Southern District of Mississippi, alleging the regularity and validity of all the steps taken in said proceedings and sale. The respondent in his answer denied any knowledge of such proceedings, and called for strict proof. The complainant failed to make the proof, but insists that he is entitled, under the provisions of our statutes, to take the facts charged, as admitted, because the respondent has not denied, but only disclaimed knowledge of, them.

Is it sufficient for a respondent in chancery to disclaim knowledge of the matters alleged in the bill, and, if his answer is limited to such disclaimer, is the complainant entitled to treat them as admitted ? Independently of our statute, the rule on this subject may be stated as follows: Whenever the facts are charged as being within the personal knowledge of the respondent, he must explicitly admit or deny them, or deny knowledge of them; and, if he fails to do one or the other, they will be taken as admitted. But, if the allegations of the bill are not of this character, his failure to deny them is ground only of exception to his answer, and will not justify the complainant in treating them as admitted.

Let us see what change has been wrought in these principles by our statute. Sect. 1016, Code 1871, provides that “ the answer shall be responsive to all the material allegations of the bill;” and sect. 1024 declares that “facts averred in the bill, and not denied by the answer, otherwise than by the general traverse, may be taken at the hearing, as admitted.” These provisions are brought forward into our present code from the code of 1857, 547, arts. 44 and 45. They have been three *62 times the subject of comment in this court. In Reynolds v. Nelson, 41 Miss. 83 , it was said that the complainant might well have set down the case on bill and answer, “for the answer does not deny a single allegation of the bill, but only alleges that the defendant has no knowledge of any of the facts stated in the bill, and demands strict proof.” In Oowen v. Alsop, 51 Miss. 158 , the answer only declared that “ defendant does not admit” the charges made. The charges were not as to matters within the personal knowledge of the respondent. Peyton, C. J., thought that the facts could not be taken as admitted, but that exception should have been taken to the answer. Tarbell, J., thought, that under the statute they were admitted. Simrall, J., having been of counsel, took no part. In McAllister v. Clopton, 51 Miss. 259 , the respondent answered that he had no personal knowledge, and required strict proof; and it was held that this was equivalent to an admission under the statute.

We think that the statute intended to some extent to obviate the necessity of exceptions to answers, and to compel the respondent, at the risk of having the allegations of the bill taken for confessed, fairly to meet and join issue on the issues tendered by the bill. In doing so, he is compelled to do something more than disclaim personal knowledge of the fact charged. A man’s personal knowledge is frequently limited within a very narrow range, and we all act every day with the utmost confidence, and in the most important concerns of life, upon the information of others, and the belief thereby engendered in ourselves. To this sort of information and belief, upon the part of the respondent, the complainant is entitled, when-he puts him upon his corporal oath touching the matters in dispute between them ; and the respondent cannot avoid a disclosure by a mere declaration that he knows nothing about the allegations made. Independently of our statute, such an answer would be liable to exception for insufficiency. Under the statute, the charges may be treated as having been admitted. Under no system is the vicious and too common habit of neither admitting nor denying any thing, but calling for strict proof of every thing, admissible.

We think that the opinion of Peyton, C. J., in Cowen v. *63 Alsop, ubi supra, states correctly the rule before the statute; but, if now adopted by the courts, it would result in a practical annulment of its provisions. The decision in McAllister v. Clopton is undoubtedly correct, because there the denial is only of personal knowledge.

The true meaning of the statute, we think, is this: There must be a denial, not necessarily of the facts, unless they are within the personal knowledge of the respondent, but of all knowledge, information and belief. Where knowledge and information are both denied, it would, perhaps, be unnecessary to make any averments as to belief, since belief, without either information or knowledge, is necessarily worthless. Whenever the denial is not of this character, — that is to say, whenever there is an omission to deny the facts, and a failure to negative both knowledge and information in relation to them, — the complainant, instead of being forced to resort to his exceptions, may treat the allegations of the bill as admitted. There might, perhaps, be circumstances in which a denial, both of information and knowledge, would be insufficient, as where the opportunity of acquiring the information was peculiarly within the power of the respondent, and he failed or refused to exercise it.

Counsel for the appellee have argued the case upon the assumption that the answer disclaimed both information and knowledge as to the matters charged in the bill; and if this were its character, we should agree with them in holding that it was sufficient, because it could never have been intended that a man should positively admit or deny matters in relation to which he has neither knowledge nor information. But the answer only declares that the respondent knows nothing about the matters in question, and calls upon the complainant for proof. This, as we have seen, is insufficient, and under the' statute relieves the complainant from the necessity of making proof.

Several grounds of invaliditjr in the tax-deed are pointed out by the bill; among others, that the tax sale, out of which the defendant’s title grew, took place on Aug. 7,1871, instead of on Aug. 3, of that year, which last-mentioned day was the proper day for the sale of lands delinquent for taxes in said *64 year, as was held in the eases of Tebault v. Britt, MS. Op.; McGehee v. Martin, 53 Miss. 519 . This point is well taken, and sufficiently shows the invalidity of the tax-deed. The answer only denies that the sale was made upon an improper day, but does not deny that it took place on August 7, as charged. We understand this to be an admission that it was made on that day.

It is suggested here in argument that the tax sales of the county may have commenced on the 3d of August, and been protracted from day to day, as allowed by the statute, until the 7th of August. This should have been averred or proved in’ the court below.

Decree reversed, and cause remanded for decree.