Wills v. McKinney , 30 N.J. Eq. 465 ( 1879 )

The Chancellor.

The question between the complainant and answering defendants is, as to the effect of certain admissions in each of the answers (the answers are filed by the defendants, McKinney, Decker, Byram, Olstead and Hart, respectively), and the silence of one of them (that of McKinney) as to the fact of the death of the mortgagee and the making and probate of his will and codicil thereto, under which the complainant, by the bill, claims title, as his residuary legatee, to the mortgages, which are three in number. The cause was set down for hearing on the bill, answers and replications.

The answer of McKinney admits the execution of all the mortgages. They were all given by him. The others explicitly admit the first one. As to the second and third, they ■ admit that McKinney made “ some such” bonds and mortgages, and, for greater certainty, ask leave to refer to them when produced and proved. This is such an admission in reference to the mortgages as renders unnecessary any proof except the production of the instruments at the hearing. Dan. Ch. Pr. (4th ed.) 838; Gres. Eq. Ev. (Am. ed.) 11, note; Rowland, v. Sturgis, 2 Hare 520. If duly acknowledged, no extraneous proof is needed. The production of them at the hearing was not required by defendants’ counsel.

All the answers, except that of McKinney, admit the death of the mortgagee at or about the time mentioned in the bill; that he left “ some such last will and testament and codicils theretoand admit that the complainant is the owner of the bonds and mortgages, and, for greater certainty, ask leave to refer to the will and codicil when produced and proved-. It will be seen that they admit that the complainant is the owner of the bonds and mortgages. This admission is sufficient, and renders any proof on the subject of the complainant’s title unnecessary. Gres. Eq. Ev. (Am. ed.) 11, note.

McKinney’s answer contains no reference to the will or the complainant’s title to the mortgages. It does not deny or question that title, and, setting up usury against the first mortgage, it prays that it may be decreed to be void therefor ; and it prays, also, that an account may be taken of the amount, if anything, due on the second and third mortgages, and that McKinney may be allowed such deduction therefrom, and such credits thereon, as may be equitable and just.

The complainant will be permitted to put in the second and third mortgages and the probate of the will and codicil as on the hearing.