Opal v. Eckert ( 1873 )

Opinion by

Judge Lindsay :

We perceive no available defect in the answers of Eckert & Becker. They both assert that the mortgage was made in good faith to secure the payment of an existing liability. It does not matter that the denials of the alleged fraudulent intent are thus affirmatively made. The onus to establish the fraud remained upon the party, making charge. But if it did not, the depositions of the two appel-lees taken by appellant sufficiently show that the mortgage was executed to secure the payment o'f money loaned by Becker to Eckert. The immaterial discrepancies in their statements would not have authorized the chancellor to conclude that they had sworn falsely as to the essential and controlling fact that money to the amount of one thousand dollars had actually been loaned by Becker to Eckert.

As no property was seized under the order of attachment (that was shown by appellant not to be embraced in the mortgage), and as he already had a judgment in personam for his debt against Eckert, the chancellor properly dismissed his petition.

Allen, Muir, for appellant. Lee & Rodman, for appellee.

Judgment affirmed.