Brundige v. Poor , 2 G. & J. 1 ( 1829 )

Archer, J.

delivered the opinion of the Court.

The decision in Tiernan vs. Poor and wife, at the last term of this Court, has settled the principal questions upon which this cause must turn.

From the doctrines there maintained, Mrs. Poor possessed a right to encumber her property by deed, or contract, provided the same should be founded on a sufficient consideration.

It was further decided, that although the paper, purporting to be a mortgage, and which was the foundation of the suit, was not acknowledged according to the provisions of the acts of Assembly, whatever might be the effects of such omission, in taking from the instrument the character, technically speaking, of a mortgage, yet that, equity would treat it as a mortgage, so far as to authorise a Court of Chancery to decree a sale of the property, covered by it, for the payment of the debt it was executed to secure. -

Taking the facts stated in the bill as true, there would be a sufficient consideration upon which to ground the complainant’s bill; for that avers, that the defendant being indebted, executed the mortgage.

Admit the facts in the answer to he true, and a sufficient consideration is also manifested. There it is stated, that the mortgage was executed by Poor and wife, to secure to Tap-pan, one of the complainants, a debt which Poor owed him, and that it was made in consequence of Tappan’s agreeing to extend the time of the payment of Poor’s debt. Tappan’s agreement to extend the payment, in consideration of the receipt of the mortgage, furnished a sufficient consideration to sustain the complainant’s equity.

All the material allegations of the bi31 are admitted by the answer. Tn addition to a sufficient consideration as above stated, it is admitted that the instrument was executed. With these admissions, the instrument becomes, in the language of the bill, a specific lien on the, property it covers.

There is, however, one fact averred in the bill, which is not admitted in the answer, — the joint indebtedness of the husband and wife; but that cannot be material, because the equity of the complainant is the same, whether the allegation that they were jointly indebted, be true or not. The real and only controversy is this: does there exist a specific lien on the property? and that the lien exists, whether they were jointly indebted, or whether Poor was indebted, and they jointly executed the instrument in consideration of forbearance.

It is not necessary to express any opinion as to the effect of replying to a plea, because we do not consider there is any plea filed in the cause. The paper filed by the defendant, which he indiscriminately calls a plea, and an answer, we consider as nothing more than an answer; and it is perfectly apparent from the proceedings in the canse, and from the agreement of counsel, which constitutes a part of the cause, that it was so considered and treated by them.

The decree of the Chancellor is reversed, and the cause remanded to the Court of Chancery, that a sale of the property may be there decreed, to satisfy the debt of the complainants.

DECREE REVERSED.