Warner v. Quinlon

50 Vt. 652

Opinion

Per Curiam.

This was a petition for foreclosure, to which answer was filed, setting up payment' in defence. Replication, and evidence taken in ordinary form. The court, of its own motion, dismissed the appeal, and remanded the cause, with an order that it be referred to a master to ascertain and report the sum due.

Some inquiries that have been made as to this case, and the fact that several like cases, within the last year, have appeared in the Supreme Court in like condition, lead the court to suppose that the proper course in such cases is not understood by all members of the Bar. The above entitled case is made the occasion for saying and promulgating, that the established practice in cases of foreclosure is, where the subject of inquiry and dispute is, what is due, as depending on payments, or matter directly applicable to reduce the sum due, without affecting the validity of the mortgage as security, reference is to be made to a master in the first instance ; and the subject is not to be litigated by answer, replication, and proofs, as is done in other cases of ordinary equity cognizance and litigation. The action and decision of the court is to be had upon what is brought before the court as the result of such reference to the master, and not upon formal pleadings, and upon proofs addressed to the court in the first instance.