51 Vt. 216 | Vt. | 1878
The opinion of the court was delivered by
The bill is for the foreclosure of a mortgage. It states that the defendant Calvin Foster and his then wife executed the mortgage to the orator, January 1, 1856, to secure the payment of certain notes which he had given the orator ; that for further security of the same, and to secure a further then existing indebtedness from the defendant to the orator, and also to secure .future advances to be thereafter made by the orator to the defendant, the defendant Calvin, March 15, 1862, executed a quit-claim deed of the same premises to the orator; that thereafter further advances were made by the -orator to the defendant, and payments were made thereon by the defendant; that in August, 1867, a portion of the quit-claimed premises was sold by the orator for $1,600, and, by agreement and understanding between the orator and defendant, the same was applied in part payment of the indebtedness secured by the mortgage and quit-claim deed ; and praying for a foreclosure of the defendant’s equity of redemption of the premises. The bill thus sets up a mortgage, which, with nothing further shown, would be barred by the Statute of Limitations ; and special matter which, if true, would take it out of the operation of that statute. On being served with this bill, two courses were open to the defendants. They could answer the bill generally and specifically, and in the answer set up and rely upon the Statute of Limitations as a defence, or they could set up the statute as a bar to the action by way of plea. They chose the latter course. The plea simply sets up and relies upon the Statute of Limitations, without negating the special matter contained in the bill. As it admits all the facts in the bill not therein negated, it is insufficient, because thereby the special matters stated in the bill operated to remove the bar to recovery, which the statute would otherwise have furnished. But the defendant claims that, admitting this is so, he can rely upon his answer. But by stating special matter in the bill which operated, if true, to remove the statute bar, the orator had the right to have the defendants negate
The appeal brings the whole case here for trial de novo. On the pleadings the defendants are concluded from further insisting hat the orator’s case is barred by the Statute of Limitations, and was only at liberty to set up a new defence by way of a further answer, and not through the answer filed in support of and as a part of his plea. I cite no authorities, as the principles announced are found in all the elementary works on chancery pleadings and practice.
■ The pro forma decree of the Court of Chancery is reversed, and the cause remanded, with a mandate to that court to enter a decree of foreclosure of the premises for the orator, for such a sum as shall be found due the orator on the mortgage security, on a proper accounting before a master.