Hammond v. Rathbone

Grant, J. The purpose of this bill is the foreclosure of a mortgage for $250, dated April 1, 1889, due two-years from date, and executed by defendant George W. Rathbone to defendant Jesse S. Cahoon. Mr. Cahoon was indebted to complainant on a promissory note for $171.50. Complainant alleges that the mortgage and note in question were delivered to him by Cahoon as security for the debt due from Cahoon to complainant. The defendants Rathbone alone appeared and answered. In their answer they aver, upon information and belief, that the indebtedness from Mr. Cahoon to complainant was paid. As to the other material allegations, the answer either admits them, or simply denies knowledge in regard to them, and leaves complainant to his proofs thereon. The bill alleges that the mortgage was given to secure part of the purchase price for the land. The answer denies this, and claims a homestead in the land; but the Rathbones were not sworn, and introduced no evidence to sustain this averment or denial. This claim is practically abandoned, for in their original brief the counsel for the Rathbones do not mention it. The bill was filed December 22, 1893. When the answer was filed does not appear, and it must be assumed that it was within the time fixed by the rules. Upon the hearing, and after the testimony was introduced, defendants Rathbone were permitted to amend their answer by alleging that Mr. Cahoon did not own the note and mortgage at the time they were delivered to complainant, but that they belonged to Frank W. Clark, and that they were delivered to complainant at Clark’s request for an entirely different purpose than the one alleged in the bill. August 20, 1894, two years before this case was heard, the Rathbones conveyed the land to Clark. Clark was the principal witness for the defendants. A direct issue is presented, whether this mortgage belonged to Mr. Cahoon, and was delivered to complainant to secure his indebtedness, or whether it was delivered by Mr. Cahoon at the request of [501] Clark for the purpose claimed by him. The question is one of fact. The circuit judge saw the witnesses, and, as we have often held, is in better position to determine such questions than is the appellate court. After a careful examination of the testimony, we see no occasion to reverse his conclusion. This case was settled by including the entire testimony, by question and answer. Some of the witnesses were recalled eight or .ten times. The practice of thus settling chancery cases is to be condemned. ■ The record contains much immaterial testimony, which should have been eliminated, and the case put in narrative form. There is no necessity of putting this court to the labor and time of examining so long a record. The decree is affirmed, with costs. Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.