ROBERT M. HENRY v. WILLIAM L. HENRY.
Words however disparaging or abusive, are not scandalous in equity pleading, unless they be also impertinent.
Where a bill was filed for the specific performance of an alleged contract, and instead of merely setting out the contract, and'alleging its non-execution as a ground for the prayer, it recited, by way of inducement, a train of circumstances, which went to show ingratitude and baseness on the part of the defendant in refusing to execute the contract, Held that an answer which set up as a defence, that the contract was a forgery by the plaintiff, was not liable to exception for scandal, for detailing circumstances corroborative of the averment.In such a case, the court suggested that the bill be amended by striking out the statement of circumstantial evidence, and that thereupon the defendant put in a plea denying the execution of the contract, so that an issue might be directed for trial by a jury at law.
Bill, for the specific execution of a contract, and for an account, filed to Fall Term 1864 of the Court of Equity for Buncombe. The cause was continued from term to term until Spring Term 1866, when an answer was put in. Exceptions to the answer were filed and referred to a commissioner, who reported recommending that they be sustained. His Honor Shipp, J.. at Fall Term 1866 sustained the exceptions, and the defendant appealed.
The bill stated that the plaintiff and defendant are brothers, that their father, Robert Henry, a very old man, before his death in 1863 owned a large estate, real and personal, and that their mother also had a separate estate of considerable value, that in the year 1850 their father contemplated disposing of his property by will, and actually executed what purported to be a will; that he intimated to the plaintiff and defendant what he intended for them respectively, and the defendant became dissatisfied and complained to the plain*335tiff that the latter had received, or would receive, more in value than himself; that thereupon the plaintiff, for the sake of harmony and from brotherly affection, proposed to the defendant that they should become joint and equal owners of all property that they had received, or might thereafter receive, from their parents ; that the defendant, thinking he would be the gainer by such arrangement, readily consented and articles of agreement to that effect, under seal, were duly executed by them. These articles purported to be executed Sept. 6th, 1850, and were set out as a part of the bill.
The bill proceeded to state that the plaintiff was ac-. tively engaged in the practice of his profession, as an attorney at law, at Asheville, Waynesville and Franklin, from the date of the contract until a short time before the death of his father, when he became a member of the Confederate army; that the defendant resided most of the time with his father, and by some means became quite a favorite with him; that he exercised control over his mind, and used his money and other property at will, &c. A detailed statement was then made of the sale by the defendant of valuable slaves and tracts of land belonging to his father, and the bill charged that the proceeds (together with the rent of the Sulphur Springs and other valuable property belonging the father,) were invested in railroad stock in South Carolina, and lands lying in different counties, for the defendant’s benefit; that he subsequently obtained from his father deeds for the Sulphur Springs’ property and several slaves, and that he also received valuable gifts from his mother, while the plaintiff had received but little property or money from either parent. It was further charged that many of these transactions were fraudulent, and that the defendant used the influence he had acquired with his father to prejudice him against the plaintiff, and had caused him to change his will and exclude the *336plaintiff from any share in his estate ; that it was the defendant’s fraudulent design to get possession of as much of the estate of his parents as he could, and leave the State, that since the death of their father the plaintiff had demanded a settlement of the defendant, on the basis of the contract, and the latter refused to settle with him.
The answer denied that the contract set out in the bill was executed by the defendant, or that he knew of the pretended existence of such contract until after the death of his father; and to meet the allegations in the bill it contained circumstantial statements as to the character and conduct of the plaintiff.
There were five exceptions filed to the answer but being of the same general character with the first that only is set out.
“ The plaintiff by his counsel comes and excepts to the defendant’s answer for that it is irrelevant, scandalous and impertinent in this, for that it is stated — 1st. That respondent never would have made such a contract, as it teas always imderstood in the family since respondent's earliest recollection, that llis father denied that complainant teas his child, and always after about 1852 he charged that the complainant defrauded him by raising a note to which the said Robert Henry had entrusted him with his signature, for $300 to discount in the Asheville Branch Bank of Gape Fear, to $900, and thus subjected him to the payment of $600 more than he had ever agreed to.
No counsel, for appellant.
Merrimon, contra.
Pearson C. J.
Words however disparaging or abusive are not considered scandalous, in equity pleading, unless they *337be also “ impertinent,” that is, irrelevant to the ease and put in for the mere purpose of scandal.
Tested by this rule, none ot the exceptions to the answer ought to have been sustained. For the sake of illustration take the first exception: The bill set out by way of inducement, and to show the motive for making the contract which it seeks to set up, that at one time the plaintiff was his father’s favorite, and had well founded expectations of receiving the greater part of his father’s estate. To meet this allegation, and to support the averment that the contract was a “ forgery,” or had been obtained by fraud and imposition, it was certainly relevant to use the words excepted to, viz : “as it was always understood in the family, since respondent’s earliest recollection, that his father denied that complainant was his child;” and also the words in regard to “ raising ” the note, by which the father believed the complainant had been guilty of a gross fraud. The same remark is applicable to all the other matters excepted to. Although they are abusive and disparaging, they are not impertinent, but are relevant and responsive to the allegations of the bill. If the plaintiff had simply set out the contract, alleged its due execution and asked for a decree to have it specifically executed, and to that end, for an account, &c., the exceptions to the answer would have been well taken. But the bill, by way of inducement, and for the purpose of corroborating by circumstantial evidence the allegation of the due execution of the alleged contract, goes into particulars, and sets forth a train,of circumstances, which, it true, make out a case of ingratitude and baseness on the part of the defendant, in refusing to give effect to the contract. To meet this very plausible case made by the bill, the defendant, in his turn, goes into particulars, and sets out many circumstances tending to corroborate his averment, that the con*338tract was a forgery, or was obtained by fraud and imposition. All of these particulars are relevant, and tend to support his denial of the due execution of the supposed contract; so that the plaintiff is to blame for introducing into the bill matter of circumstantial evidence, and the defendant is well warranted in replying to it in the same way.
We can only account for the ruling of his Honor, by supposing that his attention was confined to the answer, which is certainly, y:er se, as abusive as it can be, and did not advert to the fact, that the several matters set out in the bill call for a full response on the part of the defendant, and imposed upon him the necessity of going into the case according to his view of it.
We feel at liberty to suggest that even now, it would expedite the cause, for the plaintiff to amend by striking out all of the bill which amounts to a mere recital of circumstantial evidence, so as to put it upon the allegation of the due execution of the contract. Then the defendant can withdraw his answer, and put in a plea denying the execution of the contract; whereupon, acording to the practice and course of the court, an issue will be framed to be tried by a jury in a court of law, where all this circumstantial evidence on both sides may be offered to the jury to be passed upon.
We think it proper to make this suggestion, because if the case should be sent up to be heard in this court upon a mass of depositions, in regard to circumstances tending to corroborate or weaken the direct evidence as to the due execution of the contract, by the course of this court an issue will be made up to be tried by a jury in the county where the bill is filed; and it is better to save trouble and expense of taking depositions, as the issue will be tried upon the examination of witnesses before the jury.
*339The order sustaining the exception to the answer is reversed. This opinion will be certified.
Per Curiam.
Order accordingly.