| Vt. | Mar 15, 1844
The opinion of the court was delivered by
This case seems to have been decided in the court of chancery upon the ground that the answers were not traversed, — which would make them evidence to their full extent; and as in this case the answer of Donald McDonald insists that the exchange of notes was made with the express agreement that the orator should release his claim upon the land, there could, in that view of the case, be no doubt as to the defendants’ right to a decree. .But, it now appearing that the answers were traversed, it becomes necessary to inquire how far the answer is responsive to the bill. What is responsive to the bill will be determined by the bill, and not by the interrogatories. Those can neither limit nor extend the defendants’ obligation to answer.
In general, the orator may read any portion of the defendant’s answer as evidence,, without making any other portion of the same answer evidence in favor of the defendant. It is said in some of the cases that the orator has no right to select parts of sentences,, but must take entire sentences. This may be true, if, by taking parts of a sentence, the sense is perverted, or rendered uncertain ; but beyond that I do not think the rule can be made of much significance, although found in the elaborate opinion of the chancellor in the well known case of Hart v. Ten Eyck, 2 Johns. Ch. R. 62, at the 91st page. The truth is, that in chancery the answer is to be considered as a plea, and, so far as any fact is admitted, it is evidence against the defendant; but when any new fact is alleged by way of avoidance of the matter charged in the bill and admitted in the answer, it stands like any other plea,, and must be proved. See
In the present case the bill charges that the new note was substituted for that described in the mortgage; the defendant, in his answer, admits this, — but farther alleges that this was done with the express agreement that the mortgage should be released. This latter is an affirmative allegation, in avoidance of the matters alleged in the bill and admitted in the answer, and, as such, required proof.
The admission in the answer of the substitution of one class of notes for the other is not sufficient to release the mortgage security, either as to the mortgagor, or attaching creditors. Dana et al. v. Binney et al., 7 Vt. 493" court="Vt." date_filed="1835-02-15" href="https://app.midpage.ai/document/dana-v-binney-6571789?utm_source=webapp" opinion_id="6571789">7 Vt. 493. And we do not perceive why Gray should stand in any better condition than an attaching creditor.
But, as the traverse in the case does not appear to have been filed in time, under the rules, or by any special order of thq court, and as there does not seem to have been a full understanding of the parties in regard to the state of the case, when it went to a hearing, it is not thought best to award a peremptory mandate to the court of chancery in regard to the future disposition of the case, as is usual in this court.
The decree of the chancellor is reversed, and the case remanded to the court of chancery, with directions to pass a decree for the orator, according to the prayer of the bill, unless, for sufficient cause shown, that court shall be of opinion that it is equitable to allow the defendants to .take testimony in support of their answers.