Rankert v. Clow

Wheeler, J. In the case of Williams v. Bailes, (9 Tex. R. 61,) where a plea impeaching the consideration of a note under seal, was not supported by affidavit, as the statute requires, it was held, that the plaintiff, having gone to trial upon the plea without objection on account of the want of an affidavit of its truth, must be deemed to have waived the objec [11] tion, and that the plea could not be treated as a nullity for the want of the affidavit. The principle of that decision is equally applicable to the present case. The plaintiff went to trial upon the plea of payment and in reconvention : and it was not until after there had been a verdict for the defendant, upon the merits of the plea, and a new trial awarded on account of a ruling of the Court upon the admissibility of evidence, that.the objection was taken to the plea, for the want of an affidavit. By going to trial upon the plea, we are of opinion the plaintiff ought to be held to have waived the objection. It was not of a character to entitle it to favor. It certainly admits of a question whether the statute contemplated, or ought to be held to apply to a case where the defendant pleads in reconvention. Though the defendant had omitted to plead to the action, it cannot be doubted that he could have brought his action to recover of the present plaintiff the moneys the latter had received to his use. It would be a singular anomaly in our practice, if a defendant should be required to make affidavit of the justice of his defence, before he could be permitted to plead to an action instituted against Mm, matter, which he could assert by a cross action, and, of course, without affidavit. It is questionable, whether the Act of 1846 (Dig. Art. 773) does not so far modify and change the Act of 1840 respecting the foreclosure of mortgages, (Art. 2505,) as to dispense with the affidavit, and entitle the defendant to his defences and trial in this, as in other cases ; for at present the judgment, and, consequently, the trial, is not limited to a mere foreclosure, but the plaintiff has his money .judgment also, upon which execution may issue to be levied upon property other than that included in the mortgage. Whatever may be the'proper construction of the statute, considered in connection with other statutes in pari materiai, it is certain that it does not require the Court to give judgment for the plaintiff for a greater amount than appears to be due [12] him. Yet such was the case in the present instance. It appears by the mortgages, which the plaintiff exhibits, and of which he seeks the foreclosure, that he was authorized to receive, and apply, in satisfaction of the debt, the rents and profits of the mortgaged premises. The presumption is that he has received the moneys so due the defendant, yet he has not accounted, nor offered to account for the moneys received ; but by the judgment of the Court he has recovered the full amount of debt and interest which the mortgages were given to secure. Upon the most obvious principles of equity and justice he ought to be required to account, or to repel' the presumption of his liability to account, before a decree of foreclosure is rendered in his favor, though no plea or defence had been interposed ; especially, where, as in this case, the defendant is an absentee. Until he does so he does not appear to have a right of action. It was incumbent on him to present, by averment and proof, a state of case which would entitle him to the decree which he sought. But this he has not done; for upon the case presented by the petition, prima fade, he is not entitled to a decree without accounting for rents and profits. The statute does not require, and there is no principle of equity which will sanction, or tolerate, an injustice so flagrant, as that which would result, if a mortgagee were permitted to recover the full amount of money which the mortgage was given to secure, and to have a forced sale of the property for its payment, and if insufficient, an execution against other property of the mortgagor, when the plaintiff appeared to have received the rents and profits of the mortgaged premises, for which he had not accounted. Such a determination would be plainly violative of a first principle and maxim, by which Courts of Equity are governed in administering relief, that he who seelcs equity must do equity. It cannot receive the sanction of a Court, which is bound to administer the equity, as well as the law, of every case which it adjudicates. If, therefore, we were of opinion that the Court ruled rightly [13] upon the exceptions to the plea, still the judgment must have been reversed, for the reason, that, upon the case made by the plaintiff’s petition, it does not appear that he was entitled to the judgment rendered in his favor. It is too well settled to admit of question, that objections to a judgment, which go to the merits and foundation of the action, will be considered, though not assigned as error ; and that a judgment cannot be permitted to stand, which upon the plaintiff’s case, as presented by his petition, appears not to be well founded in justice and in law. But we are of opinion that the Court erred in sustaining the exceptions to the answer ; for which the judgment must be reversed and the cause remanded. Reversed and remanded.