247 N.W. 106 | Mich. | 1933
The bill herein was filed to foreclose a real estate mortgage for $3,000, given by defendants *61 to plaintiff in 1923. Defendant Ruth Smith appeared and asserted that $1,500 was paid on the mortgage December 18, 1926, and produced an alleged receipt to such effect, which she claimed to have found among her husband's papers after their separation. Whether such a payment was made was the issue in the Circuit court. The circuit judge was unable to adjudge that the alleged payment was made, and defendant Ruth Smith reviews by appeal.
At the time the mortgage was given, defendants were husband and wife, but later they separated, Ruth filed a bill for divorce, and that case was heard just before this case, and is here for review by appeal of George Smith. George Smith is plaintiff's son. Payment, whether in whole or in part, is an affirmative defense. Court Rule No. 23 (1931). It must not only be pleaded (Loomis v. Bound,
Upon consideration of all the evidence, we are unable to find that the alleged payment was made.
The decree is affirmed, with costs.
McDONALD, C.J., and CLARK, POTTER, SHARPE, NORTH, FEAD, and BUTZEL, JJ., concurred. *62