14 Ill. 493 | Ill. | 1853
This was a bill in chancery to foreclose a mortgage, brought by the trustees of schools against Palmer, Rue, Morris, and Swift.' The bill set forth the execution of a mortgage by Palmer to the complainants; a conveyance of the premises by Palmer to Rue, subject to the mortgage ; a conveyance by Rue to Donnell; and a conveyance by the latter to Morris in trust for Swift, both of whom had notice of the mortgage. The bill was taken for confessed against Palmer and Rue. Morris and Swift, in their answers on oath, expressly denied all notice of the mortgage. A decree of foreclosure was entered, and Morris and Swift sued out a writ of error.
As the mortgage was not registered, the defendants had no notice of its existence from the records. The bill alleges, that the conveyance to Rue was made subject to the mortgage; and as the defendants derive title through him, it may perhaps be, that such a condition in the deed would operate as notice to them of the mortgage. But the deed was not produced in evidence, and there is nothing in the case to sustain this allegation. The only proof to establish the charge of notice, consists of the testimony of a single witness. That is not sufficient against the sworn statements of the answers. The allegation of notice is distinctly denied in the answers. That part of the answers is clearly responsive to the bill, and is evidence for the defendants. And it must prevail, unless the complainants sustained the charge of notice by two witnesses, or by one witness and strong corroborating circumstances. Such is the well established rule of equity. The testimony of one witness is not sufficient to overcome the positive denial of a material allegation of a bill. The effect of the answer is only neutralized by the opposing testimony of a single witness. It is but oath against oath. Further testimony is necessary to incline the scale, and give a preponderance on the side of the complainant.
The decree is reversed, and the cause is remanded.
Decree reversed.
