The opinion of the court concludes with the statement that, because the appellants made offers in apt time to file sworn answers stating meritorious defenses to the petition of the appellee, the chancellor committed reversible error in denying leave to file such answers. The record, however, does not sustain the assumptions of fact from which the foregoing conclusion is derived. The appellants, as the court holds, were required to file verified answers to the appellee's petition. The answers they filed were not only not under oath, but with respect to the controlling question, whether they were innocent purchasers of the property for value and without notice of the incumbrances which the appellee sought to have noted upon the certificates of *Page 540 title, not a single fact was averred. The unsworn answers, so far as that question is concerned, were evasive and contained nothing more than mere conclusions. The appellants, it is conceded, were in default and the appellee was entitled to an order to that effect. When application for such an order was made, the appellants presented counter motions that the petition be stricken because it was filed without leave and that service of the summons be quashed and the summons stricken because it was issued without an order of court, and, in case these motions should be denied, that the appellants be given leave either to amend the answers on file by adding their oaths or to file their sworn answers within a time to be fixed by the court.
The proposed verification of the unsworn answers, which were wanting in essential averments, obviously would not present a meritorious defense to the petition of the appellee. The alternative suggested by the appellants, that they be given leave to file sworn answers within a time to be fixed by the court likewise omitted the presentation of a meritorious defense and offered nothing for the court's consideration in opposition to the motion of the appellee. The appellants were in default and to prevent the entry of an order taking the petition as confessed by them, they should have submitted, as the minimum requirement, an affidavit setting forth the facts constituting their defense so that the court might determine whether it was prima facie sufficient. The alternative motion by the appellants was neither accompanied by a sworn answer nor based upon a verified statement of any character. In this state of the record, the chancellor was justified in entering the order of default against the appellants. It must be observed that Elmer J. Lavine was the active party in a series of conveyances between relatives and that immediately after the omission to note the existing incumbrances upon certificate of title No. 259076 was discovered, there followed a conveyance to Olaf A. Johnson, Lavine's father-in-law, and then a further *Page 541 conveyance to the corporation of whose capital stock Johnson owned 99.6 per cent. These facts emphasize the correctness of the chancellor's order. It certainly cannot be said that the order exemplified an abuse of judicial discretion.
In my opinion the decree of the circuit court should be affirmed.
DUNN and ORR, JJ., concur in this dissenting opinion.