Collart v. Fisk

Lyon, J. On the authority of Hathaway v. Baldwin, 17 Wis., 616, it must be held that the -answer of the defendant Fisk, so far as it relates to the execution, recording and ownership of the mortgage described in the complaint, is insufficient. But a defendant who is a subsequent incumbrancer may litigate the questions as to whether any thing is due on the debt secured by the mortgage, and, if so. how much; and, as a [241] matter of course, be may deny in bis answer that anything is due, or that there is as much due thereon as the plaintiff claims. The reasons why such subsequent incumbrancer may not deny the execution and recording of the mortgage by denial of knowledge or information thereof sufficient to form á belief, are, that the record is made and kept for the purpose of giving that information; that it is open to all, and constructive notice to all; and that its correctness and authenticity are to be presumed. For these reasons it is held that no person can be heard to plead ignorance of the record so far as it affects his own title or property. But these reasons do not apply to the defense that nothing is due, or that less than the plaintiff claims is due on the mortgage debt. There is no record to show payments thereon, and a subsequent incumbrancer has no constructive notice on the subject. Hence no good reason is perceived why he may not deny the allegations of the complaint in respect to the amount due on the mortgage debt, just as he may deny any other material allegation therein, of which he is not presumed to have knowledge and concerning which he is ignorant, by a denial of knowledge or information thereof sufficient to form a belief. The cases cited By the learned counsel for the appellant in support of the opposite doctrine have been examined, and we think they fail to sustain the position of counsel. We conclude that the answer of the defendant Fish contains a sufficient denial that there has been any breach of the conditions of the mortgage, and that the demurrer thereto was properly overruled. By the Court.— Order affirmed.