Ross v. Utter

Treat, C. J. This was a suit in chancery, brought by Utter against Ross, for the foreclosure of a mortgage. The bill alleged in substance, that in September, 1848, H. B. & J. B. Patterson made their promissory note to J. R. Sharp for $128, payable in March, 1851, and that the payee, in March, 1850, assigned the same by indorsement in writing to the complainant; that the Pattersons also executed a mortgage to Sharp, to secure the payment of eight notes, including the one held by the complainant; that in March, 1851, the Pattersons conveyed the mortgaged premises to the defendant, who had since had the possession thereof; that in September, 1850, Lyman Moon recovered a judgment against the Pattersons on one of the notes secured by the mortgage, under which the mortgaged premises were sold, and the certificate of purchase assigned to the defendant ; and that all of the notes were paid, except the one assigned to the complainant. That note, but not the indorsement, was copied into the bill. The defendant, in his answer, admitted the purchase of the mortgaged premises, but insisted that the same was made for a full consideration, and under the assurance and belief that the notes and mortgage were discharged. He stated in reference to the note in question, that he “ has no knowledge of the complainant being the owner of said note, except such as is disclosed in the bill; and that he has no knowledge of the note being one that was secured by said mortgage, except from rumor, and from what appears in the bill; and he asks that the complainant be ruled to strict proof thereof, as well as the other allegations of the bill.” The only proof respecting the note was as follows. “ Interrogatory : Is the certified copy of the note, signed by H. B. & J. B. Patterson, set out in the bill of complaint in this cause, and now before you, one of the notes executed as stated by you above ? Answer : I should think it was.” The note was not attached to the deposition of the witness, nor does it anywhere appear in the case except as copied into the bill. The court decreed a foreclosure of the mortgage, and the defendant appealed. The complainant alleged that he was the assignee of one of the notes secured by the mortgage. That was made the foundation of his right to relief. As the allegation was not admitted by the answer, it was incumbent on him to support it by proof. There was no evidence to sustain the allegation. The testimony of the witness did not even tend to show that the complainant had any interest in the note or mortgage. The witness merely stated that the instrument set forth in the bill was a copy of one of the notes executed by the Pattersons. The complainant should have produced the original note, and proved that it had been assigned to him by the payee. Failing altogether to make such proof, he showed no right to a foreclosure of the mortgage. It was insisted on the argument, that the sale on execution extinguished the mortgage. But the case is too imperfectly presented to authorize a decision of this question. The decree must be reversed, and the cause will be reman.ded, with leave to the parties to amend their pleadings, and take additional proofs. Decree reversed.