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Equitable Defenses William Haywood Moreland

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Equitable Defenses William Haywood Moreland Washington and Lee Law Review Volume 1 | Issue 2 Article 2 Spring 3-1-1940 Equitable Defenses William Haywood Moreland Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Civil Procedure Commons, and the Litigation Commons Recommended Citation William Haywood Moreland, Equitable Defenses, 1 Wash. & Lee L. Rev. 153 (1939), https://scholarlycommons.law.wlu.edu/wlulr/vol1/iss2/2 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Washington and Lee Law Review Volume I SPRING, 1940 Number 2 EQUITABLE DEFENSES VILLIAM HAYWOOD MORELAND* I. INTRODUCTION The term which is the subject of this paper is used with a number of meanings which have varied with times and places and with differ- ent systems of procedure. It is therefore necessary to go into some detail in order to separate and discuss the various meanings of the term. We may assume that from a group of circumstances, or facts, which have come into existence concerning Plaintiff and Defendant, Plaintiff selects such as suit his purpose, puts them forward in a law action, let us say in a declaration in special assumpsit, and claims damages from Defendant. Defendant in his turn may question the legal sufficiency of Plaintiff's facts to warrant a court in giving him damages; or Defen- dant may deny the existence of these facts; or he may from the same group of circumstances select other facts setting them up in a defensive pleading, claiming that the existence of these additional facts repels Plaintiff's claim to damages. In the first case, Defendant is said to de- mur. In the second case, he is said to traverse. In the third, he pleads in confession and avoidance. But there may be other facts which Defendant may not assert in this law action but which he may set up in an equity suit in the same or in another court, and these facts, if established, will prevent Plaintiff from taking judgment in the law action, or will prevent the enforce- ment of a judgment if Plaintiff has taken one. These additional facts set up in an independent equity proceeding make up what is called an equitable defense. They cannot be used in the law action but may be used in a suit in equity. This then is the first sense in which the term equitable defense is used. It signifies a defense or set of facts which, if asserted and proved in a proceeding in equity, will prevent judgment from being rendered in an action at law, or will cause the enforcement of a judgment, if rendered, to be prevented.' *Dean and Bradford Professor of Law, Washington and Lee University School of Law. 2Pomeroy, Code Remedies (5th ed. 1929) § 26. WASHINGTON AND LEE LAW REVIEW [Vol. I Of course from our set of circumstances the Plaintiff may in the first instance select facts which will entitle him to go to equity for re- lief, but as we are concerned only with defenses we give no considera- tion to this. For purposes of explanation and analysis a tabulation is inserted in the note.2 In each of these instances in the tabulation time was when the defense could not be made in a law court. If we should ask which of them may be made in a law court today, we should have to put the question with reference to some particular time and place. For these phases of the law of procedure are in a course of constant change. These defenses, though equitable, have a way of "passing over" to the law side and becoming true legal defenses, a process which has been going on for a long time and on an irregular front. When de- fenses have so passed over the practice, as to many of them, is to con- tinue to speak of them as equitable defenses; as to others, the transi- 21. Action on simple contract. Defense, fraud in procurement. 2. Action on simple contract. Defendant claims recoupment for fraud in pro- curement. 3. Action on bond. Defense, bond procured by fraudulent inducement. 4. Action on bond. Defendant wishes to counterclaim damages for fraud in pro- curing the bond. 5. Action on bond. Defense, payment without release under seal. 6. Action on penal bond. Defense, loss sustained by claimant is less than penalty of bond. 7. Action to evict tenant for non-payment of rent. Defense, rent and interest tendered after due day. 8. Action of ejectment. Defense, plaintiff has deed and legal title, but procured it by fraudulent inducement. 9. Action of ejectment. Defense, defendant in possession has paid for land and is entitled to deed. io. Action on note for $i,5oo. Defense, that note was intended by the parties to be made for $iooo, but by mistake was written for $i,5oo. ii. Action of ejectment. Defendant had conveyed lots t and 2 to plaintiff by mis- take, intending to convey only lot No. i. Defendant is in possession of lot No. 2 and plaintiff brings ejectment to recover it. 12. Action of ejectment. Defense, unilateral mistake, which would undoubtedly be a good defense in equity to a suit for a specific performance, but defendant wishes to use it as a defense in this action. 13. Plaintiff sues defendant in general assumpsit to recover deposit on lot of land. Defendant, resisting rescission of the contract, wishes specific performance of the contract and a decree for the residue of the purchase price. 14. Plaintiff sues on contract. Defendant wishes specific performance of entirely different contract. 15. Plaintiff sues defendant who pleads sealed release. Plaintiff replies release gotten by fraud. 16. Same as No. 15, but replication sets up mistake, not fraud. 3Hinton, Equitable Defenses under Modem Codes (1920) 18 Mich. L. Rev. 717, 1940] EQUITABLE DEFENSES tion was made so long ago that we have forgotten that time ever was when they could not be set up on the law side. There are three methods, or courses, by which this passing over may be effected: First, by judicial legislation, which Professor Hinton calls the natural course of "evolution." 4 Second, by special legislation directed to a particular defense. Third, by general statutes permitting equitable defenses to be set up in law actions. Illustrating the first process, consider the defense of fraud in an action on a simple contract;5 much of the law of counterdaim; 6 the law of conditions in contract; and personal defenses in suretyship. If we were dealing with causes of action, rather than defenses, attention should be called to the action of assumpsit. The law courts borrowed this from equity and the tremendous consequences of this borrowing may be appreciated by recalling Langdell's statement that when the action of assumpsit was developed the modern law of contract came into existence.' Returning to the first method, there is no reason to think that this process of passing over has ceased. In recent years a state court has decided that the defense of fraud to a sealed release might be set up on the law side, although there was no statutory au- thority for it.s As time passed many states have permitted equitable de- fenses to sealed instruments, without the aid of legislation. Efforts have been made in recent years to cause federal courts to extend this process to the defense of fraud to sealed instruments, but without success.9 Illustrating the second process, that is special legislation directed to particular defenses, instances are to be found in statutes permitting equitable defense to an action on a penal bond which limits recovery- to injury actually sustained;10 permitting payment as a defense in ark action upon a sealed instrument;" permitting defendant to defeat ark 'Hinton, Equitable Defenses under Modem Codes (1920) 18 Mich. L. Rev. 717, 721. 'See Buzard v. Houston, 119 U. S. 347, 352, 7 S. Ct. 249, 252 (1886); Slim v. Croucher, 1 De F. G. 9- J. 518, 527, 45 Eng. Rep. 462, 466 (186o). &Loyd,The Development of Set-off (1916) 64 U. of Pa. L. Rev. 541. Langdell, Summary of Contract (2d ed. 188o) 1o2; Barbour, History of Contract in Early English Equity, 4 Oxford Studies in Social and Legal History (1914). 8 Nelson v. Chesapeake Const. Co., 159 Md. 20, 149 Ad. 442 (1930). "Radio Corporation v. Raytheon Mfg. Co., 296 U. S. 459, 56 S. Ct. 297 (1935). 204 & 5 Anne Ch. 16 § 13; Code of Virginia (Michie, 1936) § 6261. u4 & 5 Anne Ch. 16 § 12; Robinson's Practice (1832) 208; Code of Virginia (Michie, 1936) § 6141. WASHINGTON AND LEE LAW REVIEW [Vol. I action of ejectment by proving payment of rent after due day;12 per- mitting equitable defenses to be set up in actions of ejectment.13 With respect to the third process, that is to say general statutes per- mitting equitable defenses to be set up in law actions, we must go into a somewhat detailed discussion, beginning with the history of English procedure on the subject. II. EqurrABLE DEFENSES IN ENGLISH COURTS A. Before the ProceduralReform Statutes With the opening of the Nineteenth Century, the great century of legal reform, the most powerful attacks on the procedure of that day -were concentrated on two points-the separate procedures in law and .equity, and the division of proceedings at law into forms of action.
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