#### Hardy vs. Heard et al.

The design of the statute, in requiring- the recital of the judgment, execution, &e., in a deed by a'sheriff for land sold under execution, ivas to relieve the purchaser from the necessity of producing the judgment, &c., and to leave to the party, who would contest the sale, to establish its invalidity.

A deed for land sold under execution, not containing the recitals mentioned in the statute, or not showing on its face a compliance with the law, could not be evidence under the statute. But if such deed is in compliance with the statute, it is only prima facie evidence, and may be entirely overthrown by evidence that the sale had never been made, or had not been made in accordance with law.

A vendee of real estate, holding under a bond for title, has such an interest in the land as is subject to a judgment lien and to sale under execution; subject to the legal and equitable rights of the vendor for the unpaid purchase money.

Mere inadequacy of price, without additional circumstances, is not sufficient to invalidate a sale under execution, when fairly and legally made.

The rule in chancery is, that the admission of incompetent evidence will not vitiate, if there is sufficient competent proof to sustain the decree. 4 Eng. 546.

Tt is a universal rule, that he who submits to answer, must answer fully and fairly all the material allegations and charges of the bill; and has no right to answer that he is not willing to admit any particular fact; nor take shelter behind sweeping and broad denials and vaguo generalities.

Where a defendant fails to answer a statement in the bill, which is neither charged nor presumed to be within his knowledge, such failure is not an implied admission of its truth, (Blalceney vs. Ferguson, 14 Arle.); otherwise, where it is charged or presumed to be within the defendant’s knowledge, or where it is answered evasively.

A. sells and conveys a tract of land to B., reserving, in the deed, all pieces or parcels of land granted, bargained and sold to sundry persons in the town of Arkadelphia, in one and two acre lots: Held, That-the reservation in the deed was sufficient to put B. upon enquiry, and affect him with notice as to the persons to whom the lots had been previously sold; and as to the extent, situation and locality of the lots: and that •a forfeiture of the lots previously sold, could not enure to the benefit of B.

In the absence of all evidence to the contrary, courts are bound to presume that any purchaser of real estate, informs himself of its boundaries, situation and locality, before making the purchase.

Appeal from Ola/rle Qvrcwvb Gowt in Ohcmcery»

The Hon. Johh QuilliN, Circuit Judge.

CuebaN, for tbe appellant.

*185FlaNAg-iN, for tbe appellees.

Hon. S. H. HbMpstbak, Special Judge

delivered tbe opinion of tbe Court.

In 1846, James K. Bogers, owner in fee, of tbe west-balf of tbe nortb-east quarter of section twenty, in township seven south, of range nineteen west, containing eighty acres of land, situated in Clark county, sold one acre of it, in tbe town of Arkadelphia, described by certain lines, to Kobert Montgomery, for one hundred and fifty dollars, who paid a part of tbe consideration money, took actual possession, and erected, at a cost of one hundred dollars, a dwelling bouse and blacksmith shop on tbe lot, and enclosed a garden. Montgomery took a bond for title, which was not produced ; but tbe scope and purport of it appears to have been that Montgomery was to pay one hundred dollars to Bogers, in two years in annual instalments, and then receive a title; and if not punctually paid tbe lot to revert, and improvements to be forfeited. On the' tbe 15th of January, 1848, Bogers and wife, among other lands, conveyed by deed of bargain and sale with general warranty, to Henry N Hardy, tbe appellant, tbe above described tract of land; but expressly reserving “all pieces and parcels of land granted, bargained and sold to sundry persons, in tbe town of Arkadelphia, in one and two acre lots,” leaving one hundred and thirty seven acres as .the quantity conveyed to Hardy.

Thomas A. Heard and Thomas B. Sloan obtained judgment against Montgomery, on the 25th of March, 1848, before a justice of the peace, for seventy-three dollars and ninety-one cents, and execution thereon being returned “ nulla bona,” a transcript was taken and filed in the office of the clerk of the Circuit Court of Clark county, where the lot was situated, on the 10th of July, 1848, in accordance with the statute. (Digest 661; State use of Brown vs. Crow et al., 6 Eng. 652.) Execution issued out of that office, on the 1st of December, 1848, by virtue whereof the same *186lot -was levied on as tbe property of Montgomery; and which was advertised, and sold, at the succeeding court, in due form- of law, to Heard and Sloan, the appellees, as the last and best bidders, and as the purchasers at the sum of ten dollars; and, who having paid the bid, the sheriff, on the 24th of September, 1849, made and acknowledged a deed to them in due form, and which was immediately recorded. About this time, they paid to Rogers the balance of the purchase money on the lot, and Rogers and wife made them a quit claim deed, embracing the one acre lot sold to Montgomery, dated the 29th of March, 1849; but which was neither acknowledged nor recorded, and which was certainly defective as a legal conveyance, and fell far short of the title Rogers was bound to make, on payment of the purchase money.

Heard and Sloan filed their bill to obtain title to the one acre lot, purchased by them at execution sale, and for general relief, and they made James 3L Rogers, Henry K. Hardy and Robert Montgomery defendants to their bill. The Court, at the hearing, decreed “ that all the right, title, interest and claim of the defendants to said lot vest absolutely in the complainants, and that the said complainants have an absolute title in fee simple, and discharged from any and all claim of the defendants.” From this decree, Hardy appealed.

The first inquiry is, whether Heard and Sloan had such title to the lot as to authorize them to apply to a court of equity for relief, and of this we think there can be no doubt; nor do we apprehend any question can be made as to the jurisdiction of a court of equity to grant the relief sought. The deed of the officer to them, recited the names of the parties to the execution, and when issued, and the date and amount of the judgment, the return of “nulla bona” on the execution issued by the justice, the filing of the transcript, and other particulars as to the execution and sale; and which recitals are by express statute made evidence of the facts therein stated. (Digest 504.) The manifest design of this statute was to relieve the purchaser from the necessity of producing a judgment and execution, levy and advertisement ¿ or, in. *187other words, to excuse him from the duty of proving, in the first instance, that the law had been complied with; and leaving it to the party, who would contest the sale, to establish its invalidity. The statute rests on the fundamental principle that public officers, executive, judicial and ministerial, are presumed to discharge their duties, until the contrary is made to appear; and on the further ground that there is no better method of encouraging fair judicial sales, and protecting tona fide purchasers, than to afford all reasonable facilities to enable them to reap the fruits of their purchases. A deed, not containing the recitals mentioned in the statute, or not showing on its face a compliance with the law, could not be evidence under the statute. (Moore vs. Brown, 11 How. S. C. R. 424.) Nor is a deed in compliance with the statute, any thing more than prima faoie evidence, as was held by this Court in Newton vs. The State Bank, (14 Ark. 10); and may, therefore, be entirely overthrown by evidence; because, unless it was competent to prove that the sale had not been made at all, or that it had not been made in accordance with law, the door would be closed to enquiry; the deed, whether true or false, import absolute verity on its face, and so far from being only primiafaeie evidence would become conclusive evidence of the facts recited. Such a doctrine would place it in the power of an officer to deprive a man of his freehold against law, and with comparative impunity. Montgomery had a bond for title, and consequently had such an interest in the land, as was subject to a judgment lien, and subject to sale under execution. Our statute is very comprehensive, and declares all real estate subject to execution, whereof the defendant, or any person for him is seized “in law or equity,” and also the lien of a judgment; attaches to all estates and interests in lands and tenements, whether “ legal or equitable,” liable to be sold under execution. (Digest 498, sec. 25; 627 sec. 36.) The vendee of real estate, holding a bond for title, is in equity considered as the real owner, whether he had paid the purchase money, or actually taken possession or not subject only to the legal and equitable rights of the vendor for *188the unpaid purchase money. As owner, he has an interest,1 to which the lien of a judgment attaches, and whichfmay be seized and sold under execution. In Smith et al. vs. Robinson, (13 Ark. 534,) the nature of title bonds was elaborately discussed, and the Court held that the parties to such a contract stood in the relative positions of mortgager and mortgagee, and that all the incidents of a mortgage attached to and controlled these kind of contracts. (5 Porter 452.) It follows, then, that the vendee, in analogy to the mortgager, is the owner of an equity of redemption, and that this is the real and beneficial estate, which is descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law (4 Kent 159, 160); subject, of course, to the rights of the vendor. The purchasers, then, succeeded to all the rights of Montgomery, and although the amount bid by therm was small, yet it was the highest and best bid, at a public sale, on regular notice, at the time and place appointed by law, and which appears to have been fairly and properly conducted. It has become well settled that mere inadequacy of price, without additional circumstances, is not sufficient: to invalidate a sale, fairly and legally made, and the sound reason for the rule is, that the intrinsic value of property cannot be measured by any precise standard; but depends uponopinion, different in different men, and influenced by various circumstances. It must, in its very nature, be fluctuating; high at one time, depressed at another, according to the actual condition of the monetary affairs, and comparative prosperity of the country. (1 Story's Eg. 245.) And there are other reasons equally persuasive. Lands offered for sale on execution, maybe encumbered with prior liens, to nearly if not quite their value, or subject to adverse claims or pretensions, or .there may be defects or suspicions as to the validity of titles; and to expect, under these and like circumstances, that property will sell for what a person, unacquainted with such circumstances, would say it was worth, would be unjust to purchasers, and destroy all confidence in judicial sales. Livingston vs. Byrne, 11 Johns. *189 566; Williamson vs. Dale, 3 Johns. Ch. R. 292; Osgood vs. Franklin, 2 Johns. Ch. R. 23 to 29.

Lands tbns situated, can hardly be said to have any determinate value, beyond what they will produce at a public sale fairly conducted. It resolves itself into this, that the law, having designated the mode, manner, time, and place of sale under execution, has made that the test of value, and to disregard it, on the isolated ground of inadequacy of consideration, would not only be extremely dangerous, but would be to exert a sort of dispensing power, which is happily unknown to a government of laws. A precedent like that, carried out to its fullest extent, would, in the language of Lord Chief Baron Eyre, in Griffith vs. Spratly, (1 Cox. R. 383,) “ throw every thing into confusion, and set afloat the contracts of mankind.” It may be stated, then, as a safe and salutary rule of property, that mere inadequacy of consideration, or price, is not sufficient to avoid a sale fairly made.

There is nothing in the title, set up by Heard and Sloan, that renders it unfit or improper for a Court of equity to afford relief, in case they are in other respects entitled to it.

In deciding whether the decree is correct, as to Hardy, the most material point is, as to the identity and locality of the one acre lot sold by Rogers to Montgomery, and for which the latter held a title bond; and this must depend on the bill and answer of Hardy. For, although the deposition of Rogers was taken by the complainants, and read at the hearing against Hardy’s objection, it discloses nothing material to that question, even supposing Rogers to be a competent witness, which we do not decide; although inclined to the opinion that he was-incompetent. Jackson vs. Hallenback, 2 John. 394.

But we think the deposition may be excluded, and the decree maintained. The rule in chancery is, that the admission of incompetent evidence will not vitiate, if there is sufficient competent proof to sustain the decree. 4 Eng. 546.

The bill alleged that, in 1846, Montgomery purchased from Rogers one acre lot in the town of Arkadelphia, described in the *190■bill by particular lines, received a title bond, took possession,' built a dwelling-bouse and blacksmith-shop, and enclosed a garden on tbe lot, and resided on it; that, in the purchase made by Ilardy from Rogers, the deed contained an express reservation of one and two acre lots in Arkadelphia, sold previously to sundry persons, whose names are not specified in the deed ; that Hardy knew, at the time of his purchase, that Montgomery had bought, improved, and was then living on, and in the actual possession ■of the one acre lot, mentioned in the bill; that the original title bond was pretended to be lost or destroyed; that Hardy, to defraud the complainants, sets up his pretended title to said lot; and he was specially interrogated and required to state, whether Montgomery had not purchased as alleged, whether the lot as ■described was not excepted from sale, whether Hardy did not 'know, when he purchased, that Montgomery had bought, improved and lived on the premises described; and whether the ■bond for title had not been fraudulently destroyed; and, if not, •where was it, and what its stipulations and conditions?

The description of the lot levied on and sold by the sheriff, as •-contained in his deed to Heard and Sloan, and made an exhibit in the case, was the same, substantially, as that alleged in the bill, and the exhibit was admitted. These allegations were of a nature to require specific answers; and now let us see how they were met. Hardy admits that Rogers contracted to sell Montgomery one acre of land, “somewhere in the town of Arka-delphia, but the exact locality of said land this defendant is not wiWmg to admit.” He is careful to set out that, by the contract, if Montgomery failed to make punctual payment, the land and improvements should revert; but does not show when payment was to be made. He does not state that he was uninformed as to the locality of the one acre lot; or that the description of it in the bill was not correct or substantially correct; or state or hint in what respects inaccurate; nor does he, any where in his answer, deny the locality as alleged, and put the complainants to the proof. He admits that Montgomery erected,- “ in the. town of. *191 Arlcadebphia, in the year 1846, on some pa/rt of said quarter section of land, a log cabin, blacksmith-shop, and fenced in a garden,, but is not fully unformed, as to the exaet location of the land claimed by said complainants.” He states that, in the spring of 1848, as well as he recollects, he bought the improvements “made-in said town",” from Montgomery, for about fifty dollars, “being the improvements in the said bill mentioned,” that Montgomery gave him possession thereof six or seven months afterwards, and stated to Hardy that he was unable to,comply with his purchase, and that the same had reverted, or would revert, to Rogers. He admits that, at the time he purchased from Rogers, the latter made a reserve of twenty-three acres, which had been sold to sundry persons in the town of Arkadelphia, but did not specify to whom, and refused to have the names of the purchasers specified in the deed to Hardy, for the reason that the property might revert to Rogers, and might interfere with his rights. If this be so, it is difficult to account for the statement by Hardy, that:. Rogers was to give him the benefit of all the sales to those. t<* whom titles had not been made. Hardy says he cannot state-joositi/vely what land was reserved from sale in the deed to him,, and refers to the deed, which he well knew contained only a general reservation; and .so the enquiry was not answered at all-. In one part of his answer, he admits that, in 1846, Rogers contracted to sell Montgomery one acre of land in Arkadelphia; and, in another part states, that he “ does not know what time the said Montgomery purchased, or pretended to purchase, of said defendant, Rogers.” He says he cannot state what has become of the-bond or agreement between Rogers and Montgomery; that he recollects seeing it in the spring or summer of 1848; that he cannot state fully its stipulations, but his impression and belief are, that if Montgomery should pay Rogers ninety dollars in one and two years, that he was to have “ one acre of land in the; town of Arkadelphia, fronting on the road leading from thisplaee to old Greenville,” and, on failure to make payment, the acre was to revert to Rogers, his heirs or assigns. He does not state that he *192bad no presentknowledge of the bond for title, or tliathe did not know in whose possession or custody it was, or whether it was lost or destroyed, but simply that he “ cannot state what has become of it,” without giving us a reason why.

This answer, in no one particular, or as a whole, comes up to the universal rule, that he who submits to answer must answer fully and fairly all the material allegations and charges of the bill, (Story’s Eq. Pl., 846, 847; 2 Daniel Ch. Pr., 255,) and it can seldom fall to tbe lot of any court to pass upon an answer more unsatisfactory or evasive; and which should not have been allowed to be placed on the files of the court, as the decree pro eonfesso had to be set aside to let it in. That it is evasive, is self-evident ; and, as was said in another case, it evinces a “ studied choice of phraseology,” and loose generalities, “to escape from any direct answer to the allegations in the bill.” (2 Sumner 231.) looking to the circumstances of the case, as developed by the record, and even on the face of the answer, no one, as we think, could come to any other conclusion than that Hardy was familiar with the purchase made by Montgomery from jRogers; the nature of the contract, the locality of the lot, andmade his own purchase with a knowledge of these facts; and that he did not deny the description contained in the bill, because he could not conscien-ciously do it. It may fairly be presumed, that the fact was within his knowledge. Indeed, it could hardly have been otherwise. If this were a ease where Hardy stood in the position of a purchaser of the one acre lot, it would be quite impossible for a court of equity to hold him as an innocent purchaser without notice, and allow him to retain the fruits of his purchase, because he would have to be held chargeable with notice of the prior rights of Montgomery, on the principle, now universally admitted, that whatever is sufficient to put a purchaser on enquiry, is considered as conveying notice. (4 Cow. 722; 1 Johns. Ch. R. 267; 2 Vesey, Jr. 440; 3 Scam. 202.) This is sometimes called'mbnstructive notice, or notice in law, and which is no more than evidence of *193notice, the presumption of wbicb is so .violent, tbat it cannot be suffered to be controverted. 4 Kent 179; 1 Story’s Eq. 399.

Where a party has possession or knowledge of a deed, under which he claims his title, and it recites another deed, which shows a title in a third person, the Court will presume him to have notice of the contents of the deed thus referred to, or recited, and will not permit him to introduce evidence to disprove it. Notice of a lease, is notice of its contents. (14 Vesey 426.) If a person purchases an estate in possession of tenants, he is bound to enquire into the estate those tenants have, and, therefore, will be affected with notice of all the facts, as to the extent, nature, and duration of their estates. (2 Vesey, jr., 440; 1 Story’s Eq. 399.) If a person is in possession of land, a subsequent purchaser is deemed to have notice of the possessor’s rights, whatever they may be. (2 Paige 300; 5 Johns. Ch. R. 29; 1 Merivale 282; 6 Wendall 226; 3 Paige 423.) A person, being about to purchase a lot of land, was informed that another had “some sort of claim to it,” and this was held sufficient to put him on enquiry, and constitute •constructive notice. 1 Smedes & Marsh. Ch. R. 45.

Now, laying aside all other considerations, there were two facts in this case sufficient to put Hardy on. enquiry, and charge him with notice: first, Montgomery was in actual possession of the lot when Hardy purchased; and, second, Rogers made an express exception, in his deed to Hardy, of lots previously sold by him to “sundry persons in the town of Arkadelpkia.” If there was no other fact or circumstance in the case calculated to put a prudent man on enquiry, this exception was unquestionably amply sufficient to demand from him an investigation as to the persons to whom lots had been sold, and the -extent and situation and locality of those lots, if not already apprised of these facts. And he must be held cognizant of the locality of the lot sold to Montgomery, because the latter was in the actual possession, because it was a part of the reservation made in the deed, and because for Hardy to ascertain and to inform himself of the lines and *194boundaries of Ms own land, was to learn tbe locality of tbe lot in controversy. Jones vs. Smith, 1 Hare R. 43.

Certainly, in tbe absence of all evidence to tbe contrary, courts are bound to presume that every purchaser of real estate informs bimself of its boundaries, situation, and locality, before making tbe purchase. This is consistent with tbe ordinary course of human transactions, and tbe. experience of mankind. Tbe law itself makes that presumption effectual until destroyed by counter proof, and there is nothing in tbe record tending to weaken, but' there are facts and circumstances, amply sufficient to sustain, that presumption in tbe case now under consideration.

As a defendant in chancery, submitting to answer, must answer fully and fairly, be has no right to say be is not willing to admit any particular fact or facts, and rest bis defence there; nor can be take shelter behind sweeping and broad denials, or vague generalities. (3 B. Mon. 17, 18.) Such a practice would thwart tbe end to be attained by courts of equity, which is to arrive at the real justice of the case by appealing to the conscience of the defendant. And this brings us to the question as to the consequences of a failure to answer a fact charged, and presumed to be within the knowledge of the defendant. The general rule, as to answering in chancery, was elaborately discussed by this Court in Blakeney vs. Ferguson, decided at January term, 1854. The fact in that case was, that the complainants alleged themselves to be, and claimed as widow and heirs at law of Joseph Ferguson, deceasd. Blakeney, in answering, entirely omitted to-notice or answer that statement, and there was no proof of it at the hearing. It was neither charged, nor coulditbepresumed, to be withim, his Imowledge. On this state of case, quite different from the one now involved, the Court very correctly and properly applied the general rule, that the failure of Blakeney to answer that statement could not amount to an implied admission of its truth, and that, as the complainants had omitted to prove it, the decree could not be sustained. That rule is well supported by authority, and with it we are entirely satisfied; and think it *195should govern in all cases, where the fact is neither charged, nor could be presumed within the knowledge of the defendant.

But, it has now become to be a clear exception to that rule, which we feel disposed to recognize and enforce, that where the bill charges the fact to be within the knowledge of the defendant, and which may fairly be presumed to beso ; or without so charging, the fact may reasonably be said to be within the defendant’s knowledge, if the answer is silent as to that fact, or it is answered evasively, it amounts to an implied admission of the fact thus stated; and no further proof is necessary to warrant a decree against the defendant upon it. (Scotts vs. Hume, Lit. Sel. Cas. 379; Lewis vs. Stafford, 4 Bibb 318; Moore vs. Lockett, 2 Bibb 69; McCampbell vs. Gill, 4 J. J. Marsh. 90; Price adm. vs. Boswell, 3 B. Mon. 17, 18; Mitchell vs. Maupin, 3 Mon. 187; Bright vs. Wagle, 3 Dana 256; Armitage vs. Wickliffe, 12 B. Mon. 488; Neale vs. Haythorp, 3 Bland 551.) Evasion is worse than silence; because the former may be the result of carelessnes or inattention, while the latter springs from design, and is entitled .to no favor whatever.

This exception and qualification of the general rule are only .applicable in cases of knowledge, ^ either charged or presumed; and if a fact should be charged to be within the knowledge of the defendant, which in the very nature of things could not be, or it was extremely improbable it should be so, there could of course be no implied admission arising from either silence or evasion. Before the complainant can have the benefit of the implied admission, it must appear reasonable that the fact is within the knowledge of the defendant. The exception, herein adverted to, was noticed and admitted in Blakeney vs. Ferguson, to exist in cases “ where the omitted or evaded fac.t, may be prima facie within the knowledge of the defendant,” and.although it was not received with favor, but rather regarded as of “ mischievous tendency,” yet the exception was not denied, nor the authorities by which it is sustained at all questioned.

A similar principle seems to have been acted on by this Court *196in Pelham vs. Floyd, 4 Eng. 532, and wbicb was a case where the facts charged were in the knowledge of the defendant, and not denied. The Court held that where facts are charged andnot denied, but other facts are set up in avoidance, it was not necessary to prove the facts thus charged. And this exception, qualified as it is, does not appear to be unjust, or of dangerous tendency. It rests on the sole foundation, applicable to pleadings) that the distinct and explicit assertion, by one party, of a material fact, reasonably presumed to be within the knowlege of the other, and affecting his interest, will be controverted if it is not true; and the party is not concluded unless he has an opportunity of denying it.

Men act on this principle constantly, in the ordinary affairs of life ; for it is a rule of evidence that what one party declares to another, without contradiction, when it naturally calls for contradiction if not true, is admissible evidence. (1 Greenl. Ev. 199.) It is acted on by courts, for the failure of a defendant, duly summoned, to defend an action at law, subjects him to judgment by default without further proof. Ilis failure to appear, is a tacit admission of the cause of action and the right of the plaintiff to recover.

Bills in chancery are constantly taken for confessed, and, provided the bill is sufficient on its face, a final decree may be made on that admission without further evidence, and indeed proof could not be received to militate against that admission. (2 Bland Ch. R. 447.) It is hot only supported by authority, but it grows out of a principle respecting admissions of extensive application in j urisprudence. And it is not dangerous to defendants, because, if they answer fully and fairly as to matters within their knowledge, the question can never arise, and if they do not, whether it be the result of negligence or design, they would come with an ill grace to complain of that which sprung into existence •from tlieir own default. It does not infringe or touch that cardinal rule,' that where facts within the knowledge of defendants in chancery are clearly and positively denied, it requires one wit*197ness and. strong corroborating circumstance to destroy the effect of the answer as evidence. 4 Eng. 550; 1 Greenl. Ev. 260.

Undoubtedly an insufficient answer may be excepted to, and a better one obtained; and it is not "to 'be denied that this is the more appropriate practice, and conformable to the ancient equity practice. But the modern authorities do not permit us to doubt, that the complainant may, if he chooses, file a replication to an insufficient answer; and, if it is a case where the doctrine, as to implied admissions, would apply, have the benefit of that at the hearing. It may then be safely laid down as a general rule, as in Blakeney vs. Ferguson, that if the fact stated in the bill is not answered, and cannot be presumed to be within the knowledge of the defendant, and the complainant, not obtaining a fuller and more sufficient answer on exceptions, replies to the insufficient answer and goes to a hearing, he must rely upon Ms own proof to establish the fact thus stated, and not answered, because there is no implied admission of it. But, on the other hand, it is an admitted and established exception, that if the fact charged is presumed to be within the knowledge of the defendant, to evade, or to omit to answer that'fact, is an implied admission, and, without further proof, it may be taken as true at the hearing, and a decree be rendered accordingly.

It follows that, as the locality of the one acre lot in controversy, may fairly be presumed to have been within the knowledge of Hardy, evading it in his answer, in the manner indicated, was equivalent to an admission of the locality .as alleged in the bill, and was quite sufficient on that point, to support the decree, without further evidence.

Hardy does not show any right to this lot at all. It is true that he states his belief that the lot, as described and claimed by the complainants, embraced twenty-seven feet on the west side of an acre he was residing on, and had improved, .and which was sold by Bogers to one Swink, in 1846 or 1847, and by Swink and Itogers, by deed of warranty to himself. As all pleadings must be construed most strongly against the pleader, it follows' that *198this sale may be assumed to bare taken place in 1847, tbe latest period, and consequently after tbe sale of tbe lot to Montgomery At all events it is not shown to bave been anterior. But waiving that consideration altogether, it is sufficient to disjjose of this point to observe that, as this was new matter in avoidance, it was necessary for Ilardy to prove it before any benefit could be derived from it, and there is certainly not a particle of evidence to show that twenty-seven feet of bis acre were in fact included, as .alleged by him, in tbe lot claimed by tbe complainants. Tbe plaintiffs by putting in a general replication to bis answer, bad denied tbe matters therein alleged, and tbe legal effect was to put him to tbe proof. (Story’s Eq. Pl. 877; 4 Paige 23; 8 Pickering 113; 10 Yerger 213.) Matter in avoidance must be -proved. 1 Munford 373; 1 Gill & Johns. 272; 2 Johns. Ch. R. 89; 2 Bibb 38; 4 Eng. 532.

• But, it is insisted that, by tbe terms of tbe title bond to Montgomery, on failure to pay at tbe time stipulated, tbe lot was to revert to .Rogers and bis heirs and assigns, and all improvements to be forfeited; and that, as Montgomery failed to pay according to stipulations, tbe right of Montgomery was forfeited.

Now, to say nothing of tbe rule, that courts of equity will never enforce a penalty or a forfeiture, or aid in divesting an estate for a breach of a covenant or condition subsequent, (2 Story’s Eq. 1319; 4 Johns. Ch. R. 431; 1 Peters 232, 236,) and to lay aside tbe doctrine that time is not generally deemed in equity to be of tbe essence of tbe contract, (2 Story’s Eq. 776,) it is not eaáy to perceive what claim Hardy has to avail himself of this forfeiture, supposing it to exist. If it was a right which Rogers could assign, be did not assign it, and, as has been already demonstrated, be did not sell the lot to Hardy, but actually excepted it; nor does it appear that tbe contract between Rogers and Montgomery was assigned, or transfered to Hardy, or that he had any right to it. If, in consequence of the failure to make payment, Rogers might bave demanded tbe reversion of tbe lot, and insisted on the forfeiture; it is certainly true that be could waive *199it, and, if it were necessary to establish a waiver, we should find abundant evidence of it in the quit claim deed, made by bim to the complainants for the lot in controversy, and in his failure to answer the bill, and thereby confessing it, and submitting to a decree. This, then, is a defence with which Hardy does not appear to be connected, and of the benefit of which he could not avail himself, and it may be dismissed without further remark. In any view of the case, it does not appear to us that Hardy has any substantial reason to complain of the decree. It is true that he had no title to the lot in controversy to divest, and it would have-been more appropriate to have enjoined him from setting up any title to it, and divested the’ title out of the other defendants, vested it in the complainants', and have pronounced a decree quieting the title. But the decree cannot operate injuriously to Hardy, and as we are satisfied that if we were to give him the lot in controversy, we should award him property, which it does not appear by this record he ever purchased, or to which he has any just claim, we shall direct the decree to be affirmed with, costs.

'WatkiNS, C. J., did not sit in this case*.