Jacobs v. Vandervoort

1 Cl. Ch. 165

• Court: New York Court of Chancery
• Decided: February 15, 1840
• Status: Published

Opinion

The Vice Chancellor.

The complainants insist that the bond and mortgage are substantially admitted by the answer; and if they were not, that they can be proved’at the hearing. The defendant insists that if this is so, the marriage of the complain-: ant Nancy Jacobs to the complainant Michael Jacobs, is neither admitted by the answer expressly, nor can it be construed so to be, under the 17th rule, as it is not a fact charged in the bill as within the defendant’s knowledge ; so that the defendant’s silence is not, under that rule, an implied admission. The defendant is right. Though the complainant might have proved his mortgage if properly acknowledged upon the hearing, yet he should have taken proofs of the marriage; as that fact is essential to shew the interest of one of the complainants, and without that fact being proved or admitted, there are not proper parties complainants ; and this is a fact not impliedly admitted by the neglect of the defendant to answer as to it. The complainant’s bill must be dismissed with costs, without prejudice to his right to file a new bill for the same matter.