Dyer v. Dean

Taft, J. The defendant Graves answered and incorporated in his answer a demurrer, assigning as special causes, want of parties and want of a proper allegation of an assignment of the mortgage to the petitioner. The first three points in the brief of the defendant Graves are upon questions raised by the demurrer. The cause was [372] heard upon the petition and answer; the demurrer was not brought forward for hearing and therefore the questions arising under it were waived and will not be considered by this court. Wade v. Pulsifer, 54 Vt. 45; McLane v. Johnson, 59 Vt. 237; Holt v. Daniels, 61 Vt. 89. The cause was heard upon petition and answer. There being no denial of the latter by way of replication, the facts therein set forth, if well pleaded, must be taken as true: Doolittle v. Gookin, 10 Vt. 265; and this is the rule although the answer is not responsive to the petition; Slason v. Wright, 14 Vt. 208; and although made by way of belief; Gates v. Adams, 24 Vt. 70; and if the facts so stated constitute a full defence, the bill must be dismissed. Slason v. Wright, 14 Vt. 208. The question then arises if the facts set forth in the answer constitute - a full defence to the petitioner’s claim. The defendant Graves in his answer does not aver that the note held by the petitioner has been paid. He says that “whether said note is nowjustlydue and owing and has not been paid according to the effect of the same, this defendant has not sufficient knowledge or information to form a belief so as to admit or deny the averment of the petition in this respect,” but he avers that the effect of the transfer of the note and mortgage to Mary F. Dean, as stated in the petition, was a merger of the claim, and, in law and in equity, a payment and extinguishment of the debt, by a merger of the title under said mortgage in the superior title of said Mary F. and her husband W. R. He does not deny the transfer and assignment of the note and mortgage, but rather the legal effect of it. That is, he claims as matter of law, that upon the transfer of the debt and mortgage to Mary F. the same was extinguished, — she then being the wife of the mortgagor and having an inchoate right of homestead and dower in the premises. But this is not true as matter of law. A married woman may purchase or take the transfer of a debt secured by .mortgage upon the real [373] estate of her husband and in which she may have inchoate rights, and hold the same against her husband, without a merger of the debt in any superior title of herself and husband. The defendant further answers that there was no valid and bona fide assignment, sale and transfer of the note and mortgage by Mary F. Dean to her son John K. Dyer; he does not deny the assignment in form, but states that it was made without any good, valuable or sufficient consideration, and therefore void as to the defendant, and that such pretended assignment, etc., were made for the purpose of reviving said mortgage debt which had been paid and satisfied. It is the legal effect of the assignment which he challenges. This claim is not tenable. If Mary F. Dean held the mortgage and the note secured thereby, she had a right to transfer the same to the petitioner, and he could hold the same, even if it was a gift from his mother to him, and any person having a subsequent interest in the premises could not. defend by showing that the note and mortgage came to the petitioner by way of gift. There is nothing in the answer which constitutes a defence to the claim of the petitioner. The subsequent allegations with reference to the validity of the defendant’s claim are not in question, and constitute no defence to the rights of the petitioner. They simply give the defendants a right to redeem. The decree of the chancellor was correct, and the same is Affirmed and cause remanded.