Hewman v. Blades ( 1880 )

De Blanc, J.

Whether it was a vente arémére, or a common-law mortgage that the debtor intended to pass or grant, and the creditor to accept, there is no doubt that the main object of the act was to secure an outstanding claim — nor can there be much doubt that, unless fraud, or want of consideration had been established, or a novation shown, the title of plaintiff to the land would have been unassailable after the first of January, 1872, the time fixed for its redemption; but, under the evidence adduced, we are bound to believe that the term for redemption was extended, and that, in satisfaction of the entire balance due on plaintiff’s claim, he agreed to take and took a note from defendant and his wife.

The acceptance, by plaintiff, of what is called the new note, in lieu and place of the mortgage debt, divested the traditional transfer of its consideration.

Two bills of exception were taken to the admission, in the lower court, of proof to contradict a written act of transfer and establish the novation of the original debt.

Fraud and error are alleged by respondent, and the evidence objected to was certainly admissible. 24 A., p. 210, 26 A. 548.

Defendant filed a reconventional demand for damages against plaintiff, who, in bar of said demand, pleaded the prescription of one year.

The plea was properly sustained.

Judgment affirmed.