
    Samuel HORSFORD v. Gilbert ROMEO, Appellant.
    
      No. 17311.
    United States Court of Appeals Third Circuit.
    Argued Jan. 29, 1969.
    Decided March 14, 1969.
    Alexander A. Farrelly, Birch, Maduro, DeJongh & Farrelly, Charlotte Amalie, V. I., for appellant.
    George H. T. Dudley, Charlotte Amalie, V. I., for appellee.
    Before MARIS, VAN DUSEN and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

This is an appeal by the defendant from a judgment for the plaintiff in an action for the proceeds of the sale of land. The land in question was located on the island of Antigua and had been conveyed by the Government of Antigua to the plaintiff and a certificate of title issued to him in 1952. In 1966 the Government desired to acquire the land as part of a missile site and since the plaintiff was in New York the defendant obtained a power of attorney from the plaintiff under which the defendant, acting as the plaintiff’s attorney in fact, conveyed the land to the Government and received the proceeds, BWI $8,040.00. The defendant paid the plaintiff US $200.00 of the proceeds but refused to pay the balance, whereupon the plaintiff instituted this suit. The defense, set up in the answer under the heading of counterclaim, was that the defendant was the equitable owner of the land and as such was entitled to the proceeds of its sale and that the payment of $200.00 to the plaintiff was a gift. Upon consideration of the sharply conflicting evidence the district court found that the plaintiff had acquired title to the land in question from the Government of Antigua and concluded that as against the plaintiff the defendant had no interest in the land which would entitle him to retain any of the proceeds of the sale. Judgment was accordingly entered in favor of the plaintiff for the proceeds of the sale, converted to U. S. currency, less the sum of $200.00 previously paid. The defendant on appeal makes two contentions.

The first contention of the defendant is that the plaintiff failed to plead and prove the law of Antigua and the court failed to apply that law in determining whether the legal title of the plaintiff to the land in question was subject to a trust in favor of the defendant as equitable owner. This contention is wholly without merit. In the first place the district court was entitled to presume, in the absence of any showing to the contrary, that the common law of Antigua, a common law jurisdiction, was the same in this regard as the common law of the Virgin Islands, which the court applied to the determination of the case. Restatement, Conflict of Laws § 622. And in the second place if the common law of Antigua on the question involved is different from that of the Virgin Islands the burden to establish that fact was upon the defendant who was asking the court to decide that he, and not the plaintiff, was the real owner of the land.

The other contention of the defendant is that the court erred in failing to take as admitted the factual allegations of his counterclaim, in view of the plaintiff’s failure to file a reply thereto. There would be much force in this contention if the portion of the defendant’s answer, which he called a counterclaim, were in fact such a pleading. Rule 8(d) F.R.Civ.P. However, the court will treat a defendant’s pleading denominated a counterclaim as an answer raising affirmative defenses, regardless of its title, if the allegations of the pleading so require, Ettelson v. Metropolitan Life Ins. Co., 3 Cir. 1947, 164 F.2d 660, and vice versa, Sachs v. Sachs, 3 Cir. 1959, 265 F.2d 31, 4 V.I. 102. That is exactly what the court did in this case and it committed no error in so doing. Indeed the defendant, when he offered testimony in support of the allegations which he contends were admitted exhibited his lack of confidence in this contention.

The judgment of the district court will be affirmed.  