Gouhenant v. Brisbane

18 Tex. 20

• Court: Texas Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Wheeler, J.

The mortgage afforded evidence of the fact and amount of the defendant’s indebtedness. But the averment in the answer, that the plaintiff held the defendant’s note for a part of the sum secured by the mortgage was -wholly unsupported by proof. It was not incumbent on the plaintiff to reply, and traverse the averments of the answer. It devolved on the defendant to prove them. He might have compelled the plaintiff to confess, or deny the fact, by propounding interrogatories to him; but the plaintiff was not obliged to respond to a mere averment of fact in the answer, though supported by affidavit. There manifestly is no error in the judgment, and it is affirmed.

Judgment affirmed.