3 Ind. 436 | Ind. | 1852
Reynolds and others, the assignees of a mortgage, brought a bill of foreclosure against the heirs of the mortgagor, Simon P. Doyle, deceased. Three of the heirs, viz., Hester Work, formerly Hester Doyle, Betsey Jackson, formerly Betsey Doyle, and Louisa J. Reynolds, formerly Louisa J. Doyle, were married women. The bill contained the following among other allegations: “ Your orators further show that there is a mistake in the said indenture of mortgage in the description of said mortgaged lands; that instead of the west fraction of the
The Court decreed that so much of said bill as was not denied by the answers should be taken as confessed against the defendants. ,
There was no proof as to the alleged mistake in the mortgage, nor was there as to some other of the material allegations in the bill.
The Court ordered said alleged mistake to be corrected, and rendered a final decree of foreclosure and for the sale of the land against all the defendants.
In Dan. Ch. Pl. and Pr., Perk. ed., vol. 1, p. 197, it is said:
“ Where a baron and feme are made defendants to a suit relating to personal property belonging to the feme, and they put in a joint answer, such answer may be read against them for the purpose of fixing them with the admissions contained it; but where the subject-matter relates to the inheritance of the wife, it cannot; and the facts relied upon must be proved against them by other evidence.”
The latter of these two rules was applied by this Court, in Comly and Wife v. Hendricks, 8 Blackf. 189, which was a suit to foreclose a mortgage.
The Court below erred, therefore, in rendering a decree without proof of the material allegations in the bill.
The decree is reversed with costs. Cause remanded, &c.
