Jackson v. Myers

Citations

• 260 Pa. 488
• 103 A. 953
• 1918 Pa. LEXIS 554

Syllabus

<p>Practice, C. P. — Practice Act of May II, 1915, P. L. 188 — Motion for judgment on the pleadings — Affidavits' of defense — Raising questions of law — Inclusion of matters of fact — Waiver—Surplus-age — Amendment.</p> <p>1. A defendant does not waive his legal defense by including matters of fact in the affidavit of defense.</p> <p>2. Where, under the Practice Act of May 14, 1915, P. L. 483, an affidavit of defense in the nature of a demurrer is filed, the affidavit should raise questions of law only, and should not put in issue matters of fact. It is not reversible error however for the court to treat immaterial averments of fact in the affidavit as surplusage and decide the case as one of law, as such averments of fact may be stricken out by amendment.</p> <p>3. Where, in an action on an agreement for the purchase of real estate, the court entered judgment for plaintiff for want of a sufficient affidavit of defense; and, on appeal, the judgment was reversed with a procedendo; and thereafter the defendant moved for judgment on the pleadings under the said Act of 1915, the contention that the defendant was not entitled to make such motion because the affidavit of defense set up matters of fact as well as of law, was not well taken; and the lower court properly entered judgment for defendant.</p> <p>Contracts — Construction—Sale of interest in estate — Collateral inheritance tax.</p> <p>4. An agreement made in settlement of litigation between a guardian of two heirs and the other heirs by which the former sells to the latter all the right, title and interest of the minors in the real and personal estate of a decedent for the sum of $40,000 in cash, “without any deduction whatever,” requires the grantee heirs to pay the sum stipulated without deduction for collateral inheritance tax.</p> <p>Jackson y. Myers, 257 Pa. 104, reaffirmed; Large y. McClain, 4 Sadler 240, distinguished by fact that no net sum was specified.</p>