Daub v. Englebach

Mr. Justice Walker delivered the opinion of the Court: This was a bill in chancery, filed by Herman Englebach, against plaintiffs in error, to foreclose a mortgage. It is alleged that on the 11th of August, 1873, one Conrad Daub, being indebted to complainant in the sum of $3435.92, by-note due in three years from date, to secure its payment executed and delivered a mortgage on lands therein described, and it was duly acknowledged and recorded. It is also alleged that the mortgagor and wife, on the 12th of January, 1876, sold and conveyed the lands described-in the mortgage to John M. Daub; that the note was unpaid. The bill further alleges that the record of the mortgage does not properly describe a portion of the land, and sets out the misdescription of one tract, and alleges that Sprague and Mosely claim some interest in this eighty-acre tract by virtue of a trust deed made to them by J. M. Daub and wife, subject, however, to the lien of the mortgage of complainant. An answer was filed by John M. Daub and wife, admitting that a mortgage was made by his father to complainant, but not the mortgage described in the bill, but the one as recorded, and that it, as made, did not contain an eighty-acre tract described in the mortgage set out in the bill; that after it was made and recorded it had been altered, by changing the description from the north-west to the south-west quarter of section 9, etc. Complainant having died, his administratrix was substituted as party complainant. On a hearing, the court decreed a foreclosure of the mortgage, except as to the eighty-acre tract, the description of which was claimed to have been altered. Defendants thereupon removed the record on error to the Appellate Court for the Third District, where, on a hearing, the decree of the circuit court was affirmed, and they bring the record to this court on error, and urge a reversal of the decree of the Appellate Court. It is urged that the circuit court erred in giving any force to the mortgage; that it was shown that the mortgage was altered, after its execution, in a material part, and as complainant failed to satisfactorily explain and prove the alteration was properly made, the court should have held that the instrument was absolutely void, and it was error to render any decree enforcing it; that as the mortgagee had always retained possession of the instrument after it was recorded, and it being proved that it was altered, the presumption is that he made the alteration, which rendered it void. On the other hand, it is claimed that as Daub and wife, in their original answer, admitted that the mortgage was made on the land for which it was foreclosed, they can not now urge that it is invalid. Plaintiffs in error claim that it was error to admit that unsworn answer in evidence on the last trial, after it had been withdrawn from the files by leave of the court. We are clearly of opinion that it is wholly immaterial whether the answer was or not sworn to by plaintiffs in error. It, like a letter or other statement in writing admitting a fact, is evidence of the admission. Nor does it matter that it was withdrawn from the files. That did not, nor could it, affect the force or truth of the admission. The answer was legitimate evidence in the case, and properly considered by the court. It is, however, urged that this answer charges that Englebach, or some one for him, made the alteration. Concede this to be true, still there was no claim that the mortgage was void, except as to the eighty-acre tract, the description of which is claimed to have been altered. But the defence is set up and urged by a person who has purchased the land subject to this very mortgage. If any change was made, it was probably before he purchased, and when he did so, as a part of the purchase money he in effect assumed the payment of the mortgage, and if required to pay the amount of the mortgage debt, he will only be required to pay what he agreed to when he purchased. It will not wrong him to the extent of a single penny. It will not be inequitable or unjust. Even if the mortgage was rendered void, he, in equity, is still liable to pay the debt. He agreed to do so, and even if the mortgage was rendered void, that did not cancel the debt, nor did it release him from his legal liability to pay it. This court has repeatedly held that a person purchasing lands, and agreeing to pay off incumbrances on the land as a part of the consideration for the purchase, becomes liable to pay the holder of the lien. It is urged that the calculation of the amount due under the mortgage is erroneous. We have not been able to detect any material inaccuracy in the amount. The decree of the Appellate Court is affirmed. Decree affirmed.