Smiton Ercanbrack vs. Horace H. Rich, et al.

Smiton Ercanbrack vs. Horace H. Rich, et al. In a mortgage foreclosure, by bill, by an assignee, it is not necessary to set out tho assignment whereby he acquired, the title to the instrument. It is enough that the bill alleges that the complainant is the assignee. A domurrer to a bill thus formed will not bo sustained. Nor will a bill be held bad on demurrer beoause it does not state what, or whether any part of tho mortgage debt has been paid or collected, providod the bill allogos that no proceedings had been had at law; Appeal from the Dodge Circuit Court. The bill filed in this cause was for the foreclosure of ¿ mortgage executed with a bond, as collateral security for the payment of the sum, by the appellants, Róper and Rich; wherein it was alleged that the securities weré executed to one William Cady for securing the payment of the purchase money of the land therein described; The bill alleged that the bond and mortgage had been duly assigned to the appellee for a valuable consideration; and alleged that $644,22, With interest, at the rate of twelve per cent., from the date of the securities, remained unpaid; and that no proceedings had been had at law to recover the debt secured by the instrument. The bill prayed a foreclosure of the mortgage and a sale of tho mortgaged premises. The defendants, the appellants here, demurred to the bill, and assigned the following causes: 1st. That it did not appear, by the bill, by whom the mortgage was assigned; nor what consideration was paid; nor that the assignment was in writing under seal; nof that such assignment was acknowledged or recorded. 2$. That it did Rót appear 'by the bill whether the 'debt secured by the bond and ’mortgage, or any part ’thereof had been collected. The Court below overruled the demurrer and the cause came into this Court, on the appeal from that decision. 'C. Billinghurst, dounsel for the appellants, argued that thé want of form in Chancery pleadings is as fatal as in pleadings at law. Story’s Equity pleadings•, § 454. That the office 'ó!f a demurrer in equity pleading is to reach objections apparent on the face of the bill, upon matter stated, of which should have been stated in if. Story E. P. § 448 'and 443. That the causes of demurref assigned showed the bill ]to be ‘defective in t'he particulars stated by the demurrer: That id pursuance of the provisions of the Revised Statutes the bill, in addition to the statement that no prof beedings had been had at law for thé recovery of the mortf gage debt, must show that no part 'thereof had been cob le'cted. That where special jurisdiction is givén by Statute, tile fecbrd must show a case within thé Statute, otherwise the jurisdiction will not be presumed. 2 Dana 270. 'Collins ¿j- Smith, counsel for the appellee, argued, that the bill set forth the matter With that degree of certainty which is required at common law. Barber’s Ch. Prác., Vol 1, p. 38, That the statement in the bill, of the ássignment of tHfe ^mortgage wás sufficient. That the statement in the bill that no proceeding's at law had been had fof the recovery of the mortgage debt was sufficient. Patterson vs; Powers-, 4 Paige’s Rep., 540; [MAJORITY — Stow, C. J.-] By the Court. Stow, C. J.- This. is a bill for the iprcclosure of a mortgage, the complainant being the as-, ■signee of the original mortgagee. The defendants demur, and assign as causes: 1st. That the assignment to the complainant is not set forth; and — 2d. Tfyat the bill does, not state whether the debt, or any part of it, has been collected. I think there is nothing in this demurrer. The bill states that the mortgage, and collateral bond, had been, for a valuable consideration, assigned to the complainant, and were held and owned by him. This was enough to entitle him to sue. He was not bound- to set forth the evidence of his right. The objection that it does, not appear that no part of the debt has been collected is not applicable, as the bill states that no proceedings had ¡been had at law; and it is only when such proceedings have been had that it is necessary to show what has ¡been collected. .Decree affirmed.