Shepard v. Shepard , 6 Conn. 37 ( 1825 )

Hosmer, Ch. J.

That the mortgage to Webb was before the giving of the notes by the mortgagor to the mortgagee, except the one for 800 dollars, is unquestionable. The plaintiff can have no fact assumed in his favour, unless he has averred it, or unless it arises by necessary inference. Now, it is not alleged, that the notes in question were given before the mortgage to Webb ; and even the first of them, made on the 23rd of December, 1823, by construction, must be taken to have been given after; as the mortgage is averred to have been executed in 1823, no other date being set forth, and compatible with all the averments, may have existed as early as the summer or spring of that year.

With respect to the note for 800 dollars, the mortgage of Isaac Shepard was undoubtedly valid. The plaintiff appears in the character of a surety, and before he has any cause of action, must have paid the above note, in whole or in part. From the bill nothing to this effect appears. In relation to all the notes before mentioned, the plaintiff avers, that “ he has paid on said notes the sum of 800 dollars.” Now, all this may be admitted, and yet it may be true, that the plaintiff has paid nothing on the note for 800 dollars. The other notes distinctly specified amount to that sum precisely ; and sundry other notes referred to, not particularized, may have been of a greater amount. It is, therefore, clear, that the plaintiff has not averred payment, nor does it appear, that of the note for 800 dollars he has paid any part.

As to the other notes, they were never, so far as relates to Webb and his assignees, embraced by the mortgage. The expression that the mortgage is to be a security “for any and all other notes heaeafter endorsed,” is perfectly indefinite. If refers to no subject matter, nor is limited to anytime. No creditor, on inspecting the record, can know whether there is any lien on the premises mortgaged, except the 800 dollars, nor be furnished with any means of information on the subject. This case falls precisely within Pettibone v. Griswold, 4 Conn. Rep. 158. and the opinion expressed more recently in Stoughton v. Pasco, 5 Conn. Rep. 442.

A bill in chancery for foreclosure, on sufficient averment, is sustainable against Isaac Shepard only ; and in this case, if the plaintiff had pleased, the bill might have been commenced, by motion to the court. But on the joint plea of the defendants to its insufficiency, if the court were bound, in any event, to make any discrimination, there were not averred the requisite facts, to authorize this course. It no where appears, that the plaintiff had paid any one or more of the notes in particular; and on this point the allegations were defective through entire uncertainty.

The averments are as insufficient, in relation to the payment of the notes, under the second clause of the mortgage, as to the payment of the 800 dollars, embraced by the first clause. They essentially amount to an allegation of payment, onsome one ormore of the notes referred to, and to nothing more. This, most certainly, is not equivalent to an averment, that any one of the notes in particular was paid ; and unquestionably, this defect cannot be relieved, by the proof of facts, whereof the defendant has not had legal notice. The plaintiff should have specifically pointed out the notes, which he claims to have paid, and not left this a subject of conjecture until the trial, and then come out with evidence in support of the payment of a part of them, This would take the defendant entirely by surprise.

The other Judges were of the same opinion.

Judgment affirmed.