Fidelity Insurance & Trust Co. v. Miller

The judgment of the Supreme Court was entered, February 17th 1879, Per Curiam. That the mortgage containing a recital of indebtedness to the intestate would have been evidence in the suit is not to be doubted; but could an action be maintained on the instrument? This is necessary to entitle the party to a judgment for want of an affidavit of defence. In Scott v. Fields, 7 Watts 360, the action was upon a mortgage containing an unequivocal acknowledgment of a bond for the debt. In was held in that case, that without an express covenant to pay, no action could be maintained on the mortgage. Judgment affirmed.