Azar, Et Vir v. Steiner

Terrell, C. J. This appeal is from a final decree foreclosing a mortgage, the defendant having interposed the *749 defense of payment. In the final decree, the Chancellor found a balance of $1500 and interest to be due on the mortgage and decreed foreclosure for this amount. Defendants appealed from that decree. Five questions are argued for reversal but in reality the only question presented is whether or not the plea of payment was proven. Appellant contends that when the plea of payment was tendered, the burden shifted to the plaintiff to show non payment and an outstanding debt. The general rule would approve that procedure but here nothing was offered in support of the plea of payment but a release of the mortgage. It was shown by uncontradicted evidence that this release was in' error as to the lots involved in the foreclosure and that it had reference to other lots which were included in the mortgage by mistake. When this was shown, the plea of payment lost its efficacy as a defense. The evidence was ample to show this and to prove the balance found to be due on' the mortgage. In fact the ultimate question in this case was one of construing the evidence. The Chancellor’s decree finds support in the record and no good reason is shown to reverse it. It is accordingly affirmed. Affirmed. Buford and Thomas, J. J., concur. • Whitfield, P. J., concurs in opinion and judgment. Justices Brown and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.