McWilliams v. Bannister

40 Wis. 489 | Wis. | 1876

Lyon, J.

I. The position of the learned counsel for the plaintiff, that, by interposing a general denial to the complaint, the defendant Mrs. Bannister has denied the averment therein that she is the owner of the equity of redemption in the mortgaged premises, and hence is not in a situation to maintain that the mortgage debt has been paid, we think is untenable. It is evident that such was not her intention; for, in another portion of her answer, the conveyance of the premises to her as stated in the complaint is referred to as an undisputed fact in the case. It seems to us thst it would be giving too extensive an effect to the general denial, to hold that it puts in issue averments in the pleading of the opposite party favorable to the party interposing such a denial, especially where it is the manifest intention of the latter not to deny such averments, but to avail himself of them. Moreover, the plaintiff introduced evidence proving or tending to prove the averment of Mrs. Bannister’s title, for he put in evidence a conveyance of the mortgaged premises to her.

It would or might be a great injustice to Mrs. Banrúster to deny her right to show, if she can, that the mortgage has been paid; for although it may be that Mr. Gillett was once liable to her on his covenants in the conveyance of the mortgaged premises to her grantor, yet now the statute of limitations has apparently run against an action on the covenants, and if payment of the mortgage be not proved and a foreclosure thereof be decreed, the whole burden may fall upon her.

Inasmuch as pleadings are now to be liberally construed, with a view to substantial justice between the parties (R. S., ch. 125, sec. 21), it must be held that Mrs. Bannister has not denied that she has title to the mortgaged premises, and is, therefore, in a position to defend the action by showing that the mortgage debt has been paid. And were this otherwise, an amendment to the answer would be proper, to make it correspond with the averment in the complaint and the proofs in respect to Mrs. Bannister's title.

II. After careful deliberation, we have reached the conclusion that, on the evidence as it stands, the plaintiff is entitled to judgment. I confess I am not as clear on this point as my brethren seem to be, yet I am unable to see my way with satisfactory clearness to the opposite conclusion. Had Mr. Gillett testified (as he does not seem to have done) that he had some recollection, however vague, of having paid the mortgage debt,’ or if any facts and circumstances other than the mere fact of delay and the plaintiff’s inability to produce the original securities had been proved, which tended, although but slightly, to show that such debt had been paid, I might hold, perhaps, that there is a presumption of payment, which the evidence on behalf of the plaintiff is not sufficient to overcome. But on the testimony in the record, I am unable to demonstrate the existence of such presumption.

It is not deemed necessary to go into an extended discussion of the evidence, or to elaborate the reasons which have impelled us to the above conclusion. It is sufficient to say that we fail to find evidence sufficient to raise a presumption of payment; and, in the absence of such evidence, the execution of the note and mortgage being proved, the legal presumption is that the mortgage debt has not been paid.

It must, however, be conceded that there is considerable doubt and uncertainty as to what the fact is, and we think it probable that other testimony throwing light upon the question of payment may be obtained. For example, by the exercise of due diligence, it is probable that Butler can be found; and bis testimony may solve tbe doubt one way or tbe other. In view of these considerations, we bave concluded not to direct a judgment for tbe plaintiff in tbe first instance, but to pursue tbe course adopted in Law v. Grant, 37 Wis., 548; that is, to remand tbe case for a new trial, if tbe defendant Mrs. Bannister satisfies tbe court, by affidavit or other proper proof, that on another trial she will probably be able to produce sufficient additional testimony to change, or which may change, the result. Otherwise the plaintiff should have judgment.

By the Coxurt. — Tbe judgment of tbe circuit court is reversed, and tbe cause remanded for further proceedings as herein indicated.