Muse, in his complaint against Stewart and Arbuckle, avers, that they were partners, engaged in the real estate business, negotiating paper, etc.; that he employed them to sell a certain dairy; that they sold the dairy to David Bowers, and took, as deferred payments, his promissory notes, amounting to two thousand six hundred dollars, secured by a mortgage on the dairy; that the dairy was afterwards sold to Joseph Collingwood, who was to assume and pay said notes; that the mortgage was executed and delivered, and left with the defendants, to he recorded;
No question is raised upon the sufficiency of the complaint. This brief abstract is given to show the applicability of the answer filed to it, which was:
First, a general denial;
Second, the following special paragraph :
That the plaintiff well knew, as early as the 10th day of March, 1878, that said mortgage was at that time unrecorded; that all' the property embraced in it was still unincumbered, and in the hands of Bowers, and remained unincumbered in the hands of Bowers until the-day of November, 1873, and that said Bowers was ready and willing to secure the plaintiff hy giving a new mortgage to the same effect, upon request of the plaintiff, which the plaintiff well knew; that the said Bowers offered to the plaintiff to reconvey to him so much of the property as would indemnify the plaintiff, but the plaintiff refused to receive the same or any part thereof; that, when Bowers sold the dairy to Collingwood, it was still unincumbered, and Bowers offered to the plaintiff to transfer the dairy to him, in satisfaction of The amount due to the plaintiff', which the plaintiff refused to receive, or any part thereof.
A third paragraph of answer avers many of the same facts alleged in the second, and also that, when Collingwood purchased the dairy of Bowers, the plaintiff novated the debt, by releasing Bowers and taking Collingwood in his stead, who undertook to pay the plaintiff; that, in pursuance of said agreement, Bowers transferred the dairy to Collingwood, which transfer the plaintiff never tried to
In a fourth paragraph the defendants aver essentially the same facts as those set up in the second. We do not therefore state it. Indeed, the three special paragraphs are governed by the same legal principle, differing only ip the character of their averments.
Demurrers, for the want of facts, alleged and sustained to the second, third and fourth paragraphs of answer, and exceptions reserved.
Neither the second, third, nor fourth paragraph is suffieient, as a bar to the action. Each admits the appellee’s right of action, but sets up nothing to avoid it. After the alleged wrong had been accomplished, and the appellee’s right had accrued, he was not bound to accept the property from Bowers, nor Collingwood’s obligation; and if he did so it was no bar to the action, nor was he bound to pursue Collingwood on the judgment.
After Bowers had sold the dairy to Collingwood, and the plaintiff' had lost his lien on the mortgaged property, in consequence of the mortgage not having been recorded, he had no claim upon Bowers or Collingwood, and no remedy except against the appellants ; and what Bowers and Collingwood afterward did with the property can not enure to a defence for the appellants. Whether the facts averred in the three special paragraphs, or any of them, might go in mitigation of damages or not, we do not enquire. If they could, they might have been given in evidence under the general denial.
There is no available error in the record.
The judgment is affirmed, at the costs of the appellants.