Byington v. Hogan

58 Mo. 509

• Court: Supreme Court of Missouri
• Decided: January 15, 1875
• Status: Published

Opinion

Sherwood, Judge,

delivered the opinion of the court.

Suit for foreclosure of mortgage. Any discussion as to the correctness of the ruling, which admitted in evidence the original answer of defendants, is entirely unnecessary, as the first and second amended answers contain in effect the same admission. The last answer contains the clause:

“ These defendants deny that said mortgage was ever assigned to plaintiffs further than would accrue in equity from an assignment of said notes, if they were ever assigned, etc.”

It is obvious, that this clause of the defendant’s answer leaves the affirmative allegation of the petition, that the notes had been assigned to plaintiff, undenied.

Nor is the admission thus made at all affected or qualified by the subsequent averment of no knowledge or information sufficient to form a belief as to whether the assignment or indorsement was made on the notes by any one having authority. Other errors are assigned, but as they have not been mentioned in counsel’s brief, they will remain unnoticed.

Judgment affirmed ;

Judge Vories absent; the other judges concur.