Quint v. Little

Mellen C. J. The plaintiff, in his bilí in equity, states two conveyances of parts of a saw-mill, made by him in mortgage to Little ; one dated July 5ih, 1819, and the other February 21, 1822- The bill further charges that Little entered into possession and has. received in money, and from the rent and profits, more ¿han sufficient to pay and satisfy the sums, to secure the payment of which the mortgages were given ; and it further states that -on the 21st. of February, 1822, Little, by his memorandum in wri-ling of that date, promised, engaged and undertook to, and with ¿he plaintiff, that when the sum, for which the mortgage of July ¿Sth, 1819 ivas given, should be paid by the rents of the mill, or in any other way, that the mortgage should be discharged, notwithstanding three years might elapse after his taking possession and before payment. In deciding on the merits of the plea in bar, which is the only subject of consideration in this stage of the cause, it is not necessary to state any of the other facts set forth in the bill. As to the mortgage of February 2t, 1822, Little, pleads a disclaimer ; to which no objection is made. As to the mort - gage of July 5, 1819, he pleads in bar that on the third of March, 1820, in the presence of two witnesses, he entered into, and look peaceable and open possession of the promises mention - [496] ed therein, for and because the condition of said mortgage deed was broken; and continued in the open and peaceable possession of the same for more than three years, for the breach of the condition of said deed ; and so possessed the same to the present time ; and that the sum mentioned in the condition of said mortgage deed has never been paid. Several objections have been made and urged against this plea ; but it is not necessary that we should enter into a particular examination of all of them, because we are of opinion that one of them is substantial. Orr, for the plaintiff. Longfellow, for the defendant. It appears by the bill that the plaintiff founds his claim to a reconveyance of the lands described in the first mortgage, (for it is not proper here to speak(of the second,) not only on the condition of the mortgage deed, but also on the subsequent memorandum or special agreement of February 21, 1822; and if, in virtue of either, the plaintiff is entitled to a reconveyance, then the bill is sustainable, although there was an entry by Little for breach of the condition of the mortgage before two witnesses, at the time and continued in the manner, alleged in the plea in bar; that is, theplea does not meet all the allegations in the bill, as to the plaintiff’s equitable rights,though it professes to be,as pleaded a full bar to the plaintiff on every ground, so far as it respects the contents of the mortgage of July 5, 1819. The plea merely discloses a bar, so far as the plaintiff’s claim in equity is founded on the mortgage deed ; but no further. For these reasons we are all satisfied that the plea is had and insufficient, and it is accordingly overruled. As before intimated, it becomes needless to ascertain whether the plea is overruled by the answer, or is falsified by it, as contended by the counsel for the plaintiff.