McCandless v. Craft

1 Ind. 295

• Court: Indiana Supreme Court
• Decided: July 1, 1848
• Status: Published

Opinion

BILL by .assignees to foreclose a mortgage. The mortgagor sets up in bar, that he had previously filed a bill against the mortgagee, before notice of the assignment, made publication against him as a non-resident, and obtained a decree declaring the mortgage satisfied. The plaintiffs proved notice of the assignment, by one witness, as having been given before said bill for obtaining said satisfaction was filed. The Court below dismissed the bill, holding said record of satisfaction a bar. The case is appealed to this Court.

The attorneys for the plaintiff say the bill was dismissed on the ground that they did not prove the notice of the assignment by two witnesses. The counsel for the defendant, without stating what ground the case was decided on, contend the Court might have put it on the ground stated, or on the ground that they did not believe the witness. If it was on the former ground it was erroneous, it being matter of avoidance set up in the answer. Under the circumstances, not being satisfied that the decree is right on any ground, we shall reverse it, and remand the cause, with leave to the Circuit Court, on the application of either party, to set aside the submission, for further proof, if parties wish to adduce it.