By the Court.,
Smith, J.
This is an appeal from a final decree [546] of foreclosure and sale, made in tbe Circuit Court of Dane county, upon a mortgage executed by E. J. A. Starr and Adelaide, bis wife, to tbe complainant. Tbe bill is in tbe usual form, setting out tbe interests of tbe complainants, and representing one of tbe defendants as a prior mortgagee.
Tbe defendant Starr, in bis answer, admits that be did, on tbe said 9tb day of April, A. D. 1855, execute tbe mortgage mentioned in tbe complainants’ bill of complaint, to secure four notes to tbe complainants, or some of tbem, payable, not as in said bill alleged, but some weeks, perhaps, after tbe said date (the exact time of payment be bad forgotten, but believed one was payable one day after date, and the others in three, five and six months); and to secure these notes be executed tbe said mortgage. But he denies that there was anything due on said notes, or either of tbem, and avers that be had paid, satisfied and discharged all of tbe notes for tbe security of which the mortgage was given; and that on tbe 10th day of April, A. D. 1855, said notes were given up by tbe complainants, to him, to be canceled, and were then and there canceled and destroyed; and admits that the mortgaged premises were occupied by him as bis homestead.
Adelaide S. Starr in her answer avers, that she has no remembrance or knowledge of ever joining with her husband, F. J. A. Starr, in tbe execution of said mortgage, or of any deed or mortgage to tbe complainants, or either of tbem; that at tbe time of tbe date of tbe said mortgage, she was in a very low and feeble state, both of body and mjnd, from sickness, and if she executed tbe mortgage at all, she was entirely unconscious of what she was doing, and charges knowledge of her condition upon tbe complainants; and that her signature was obtained by fraud of tbe complainants. She also denies that there was anything due upon the notes, for tbe security _ of which the mortgage was given, but that tbe same bad been given up to the said F. J. A. Starr to be canceled, and were canceled; and that thereby the mortgage was discharged, and also alleges that the mortgaged premises were occupied as tbe homestead of tbe family.
Tbe defendant Rowley answered, setting up bis prior mort[547] gage for some $400 for part of tbe purchase money of tbe premises, assigned to him by Desire Barrell. Tbe bill was taken as confessed as to tbe other defendants.
It will be observed, that the only party defendant before this court is Frederick ‘J. A. Starr, he being the only one who has appealed from the decree of the Circuit Court, and his rights and equities only can now be considered. From the fact that the other defendants did not appeal, we are to presume that they are satisfied with the decree of the court below; at all events it is only by appeal that this court can obtain jurisdiction of them as parties.
How, then, stands the case in regard to the appellant F. J. A. Starr ? His defence must be adjudicated according to the allegations in his answer, and the proofs brought to sustain them. No rule in equity is more thoroughly established than that the allegata and the probata must correspond. The proofs cannot avail as a defence, unless they be in support of some allegation in the answer. Now the answer of the appellant amounts to payment. He says that the notes for the security of which the mortgage was executed, were by him fully paid, satisfied and discharged, and delivered up to him by the complainants, to be canceled. If this does not amount to an averment of payment, at least it is an accord and satisfaction. It is matter in avoidance, not responsive to the bill, and must be substantiated by affirmative proof.
The only proof introduced, or relied upon to sustain these averments in the answer of the appellant, is contained in the answers of the complainants to the interrogatories propounded by the defendants to the complainants, which are in substance, that on the evening of the 9th day of April, 1855, the said Starr executed four notes to the complainants, amounting to the sum mentioned in the condition of the mortgage, with warrants of attorney attached, at Sun Prairie; that on the next day at Madison, it was ascertained that a mistake had occurred in the warrants of attorney annexed to said notes; whereupon the appellant executed new notes for the same amount, and the first notes were canceled and destroyed. One of the complainants says, [548] that tbe first notes, according to bis best impression, information and remembrance, were of- tbe same tenor and date, and were payable at tbe same time as tbe notes subsequently made and substituted for tbem. Tbe otber complainants in reference to this subject say, that one of tbe four notes was payable presently, and tbe otber at a future day, but at what particular day they cannot state, nor can they state positively that they were payable at a future date; that after tbe mistake in tbe warrant of attorney was corrected by making tbe new notes, tbe complainants receipted their respective amounts against tbe appellant, and gave up tbe first notes, and tbe appellant delivered tbe mortgage and tbe last four notes above mentioned, so corrected and substituted.
We think this evidence comes far short of sustaining the answer of the appellant. He does not directly aver that the mortgage debt was paid and discharged, but such -is undoubtedly the inference which be intended should be drawn from bis language. But even if be intended to convey the idea that the mortgage debt was paid, the proof offered by no means warrants it. The notes given were but the evidence of the debt which the mortgage was given to secure. The condition of the mortgage is, that the mortgagor shall pay or cause to be paid, the sum of $1,546.26 according to the condition of four promissory notes, &c. The substituting of other notes for the same amount, was not a discharge of the debt. The new notes took the place of the old ones, leaving the indebtedness unaffected by the transaction. It was only substituting one instrument of evidence for another, .without at all affecting the security. Hilliard on Mort. 307, 311, 312; Morse vs. Clayton, 13 S. & M. 373; Davis vs. Maynard, 9 Mass. 242; 31 Maine, 246; Burdett vs. Clary, 8 B. Monroe, 287; 3 Barb. Ch. Rep. 293; 16 Pick. 22; 10 N. H. 218; 14 Conn. Rep. 334.
As between tbe immediate parties, it was competent for tbem to change tbe time and mode of payment, and still retain tbe mortgage security. 1 Hilliard on Mort. 309, 310, 311; Hugennin vs. Starkweather, 5 Gilman, 492; McCormick vs. Digley, 8 Blackf. Rep. 99.
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By the Court.,
Smith, J.
This is an appeal from a final decree [546] of foreclosure and sale, made in tbe Circuit Court of Dane county, upon a mortgage executed by E. J. A. Starr and Adelaide, bis wife, to tbe complainant. Tbe bill is in tbe usual form, setting out tbe interests of tbe complainants, and representing one of tbe defendants as a prior mortgagee.
Tbe defendant Starr, in bis answer, admits that be did, on tbe said 9tb day of April, A. D. 1855, execute tbe mortgage mentioned in tbe complainants’ bill of complaint, to secure four notes to tbe complainants, or some of tbem, payable, not as in said bill alleged, but some weeks, perhaps, after tbe said date (the exact time of payment be bad forgotten, but believed one was payable one day after date, and the others in three, five and six months); and to secure these notes be executed tbe said mortgage. But he denies that there was anything due on said notes, or either of tbem, and avers that be had paid, satisfied and discharged all of tbe notes for tbe security of which the mortgage was given; and that on tbe 10th day of April, A. D. 1855, said notes were given up by tbe complainants, to him, to be canceled, and were then and there canceled and destroyed; and admits that the mortgaged premises were occupied by him as bis homestead.
Adelaide S. Starr in her answer avers, that she has no remembrance or knowledge of ever joining with her husband, F. J. A. Starr, in tbe execution of said mortgage, or of any deed or mortgage to tbe complainants, or either of tbem; that at tbe time of tbe date of tbe said mortgage, she was in a very low and feeble state, both of body and mjnd, from sickness, and if she executed tbe mortgage at all, she was entirely unconscious of what she was doing, and charges knowledge of her condition upon tbe complainants; and that her signature was obtained by fraud of tbe complainants. She also denies that there was anything due upon the notes, for tbe security _ of which the mortgage was given, but that tbe same bad been given up to the said F. J. A. Starr to be canceled, and were canceled; and that thereby the mortgage was discharged, and also alleges that the mortgaged premises were occupied as tbe homestead of tbe family.
Tbe defendant Rowley answered, setting up bis prior mort[547] gage for some $400 for part of tbe purchase money of tbe premises, assigned to him by Desire Barrell. Tbe bill was taken as confessed as to tbe other defendants.
It will be observed, that the only party defendant before this court is Frederick ‘J. A. Starr, he being the only one who has appealed from the decree of the Circuit Court, and his rights and equities only can now be considered. From the fact that the other defendants did not appeal, we are to presume that they are satisfied with the decree of the court below; at all events it is only by appeal that this court can obtain jurisdiction of them as parties.
How, then, stands the case in regard to the appellant F. J. A. Starr ? His defence must be adjudicated according to the allegations in his answer, and the proofs brought to sustain them. No rule in equity is more thoroughly established than that the allegata and the probata must correspond. The proofs cannot avail as a defence, unless they be in support of some allegation in the answer. Now the answer of the appellant amounts to payment. He says that the notes for the security of which the mortgage was executed, were by him fully paid, satisfied and discharged, and delivered up to him by the complainants, to be canceled. If this does not amount to an averment of payment, at least it is an accord and satisfaction. It is matter in avoidance, not responsive to the bill, and must be substantiated by affirmative proof.
The only proof introduced, or relied upon to sustain these averments in the answer of the appellant, is contained in the answers of the complainants to the interrogatories propounded by the defendants to the complainants, which are in substance, that on the evening of the 9th day of April, 1855, the said Starr executed four notes to the complainants, amounting to the sum mentioned in the condition of the mortgage, with warrants of attorney attached, at Sun Prairie; that on the next day at Madison, it was ascertained that a mistake had occurred in the warrants of attorney annexed to said notes; whereupon the appellant executed new notes for the same amount, and the first notes were canceled and destroyed. One of the complainants says, [548] that tbe first notes, according to bis best impression, information and remembrance, were of- tbe same tenor and date, and were payable at tbe same time as tbe notes subsequently made and substituted for tbem. Tbe otber complainants in reference to this subject say, that one of tbe four notes was payable presently, and tbe otber at a future day, but at what particular day they cannot state, nor can they state positively that they were payable at a future date; that after tbe mistake in tbe warrant of attorney was corrected by making tbe new notes, tbe complainants receipted their respective amounts against tbe appellant, and gave up tbe first notes, and tbe appellant delivered tbe mortgage and tbe last four notes above mentioned, so corrected and substituted.
We think this evidence comes far short of sustaining the answer of the appellant. He does not directly aver that the mortgage debt was paid and discharged, but such -is undoubtedly the inference which be intended should be drawn from bis language. But even if be intended to convey the idea that the mortgage debt was paid, the proof offered by no means warrants it. The notes given were but the evidence of the debt which the mortgage was given to secure. The condition of the mortgage is, that the mortgagor shall pay or cause to be paid, the sum of $1,546.26 according to the condition of four promissory notes, &c. The substituting of other notes for the same amount, was not a discharge of the debt. The new notes took the place of the old ones, leaving the indebtedness unaffected by the transaction. It was only substituting one instrument of evidence for another, .without at all affecting the security. Hilliard on Mort. 307, 311, 312; Morse vs. Clayton, 13 S. & M. 373; Davis vs. Maynard, 9 Mass. 242; 31 Maine, 246; Burdett vs. Clary, 8 B. Monroe, 287; 3 Barb. Ch. Rep. 293; 16 Pick. 22; 10 N. H. 218; 14 Conn. Rep. 334.
As between tbe immediate parties, it was competent for tbem to change tbe time and mode of payment, and still retain tbe mortgage security. 1 Hilliard on Mort. 309, 310, 311; Hugennin vs. Starkweather, 5 Gilman, 492; McCormick vs. Digley, 8 Blackf. Rep. 99.
[549] But we do not think that the answers of the complainants to the interrogatories propounded to them, satisfactorily show that the notes which were substituted were different in their tenor or effect from the first notes. One testifies that, according to his best impression, information and belief, they were of the same date and tenor, and payable at the same time. The other thinks that some of them were payable at a future day, but could not tell what day, nor was he positive that they were payable at a future day. The notes in suit are payable one day after date. We cannot say that these vague statements ought to be held sufficient to establish the fact of an alteration in the terms of the notes substituted, from those of the notes first drawn. On the contrary, the probability remains that the motive for alteration, or rather substitution, was, the defect discovered in the accompanying warrants of attorney.
This disposes of the defence set up in his answer by the defendant F. J. A. Starr. It was, however, objected by his counsel, on the hearing in this court, to the introduction of the notes in evidence, on the ground of erasures therein, which were not explained in proof. Whether or not the objection was made below, we are not certainly informed, but we are satisfied that the objection is untenable. It is true that any material erasure or interlineation in a note vitiates it, unless explained. But the erasure here is immaterial. It is apparent, upon inspection, that the words stricken out in the printed form were to make room for the name of one of the payers, and to change the printed form, which was to “order,” to “bearer.” It is apparent that it was done at the time of making the notes, and explains itself.
It was also objected to the mortgage that -it was not under seal. We are of the opinion that the printed letters [l. s.] inclosed in brackets • or parentheses, in the usual place of a seal, is a sufficient devise under the provisions of our statute to answer the purpose of a seal, and that the party prefixing his signature to such a device upon an instrument purporting to be under his hand and seal, adopts the same as his seal. R. /S'.', eh. 55, § 4; ch. 59, § 34.
[550] In regard to tbe defendant Adelaide Starr, it is sufficient to say that sbe bas not appealed from tbe decree of tbe court below, and lienee bas not placed ber rights and equities, if any sbe may bave had, within our power to protect or control. But even if she bad done so, or even if tbe defence set up by ber could be made available to F. J. A. Starr, there would then be found the same difficulty in tbe way of relief, because of tbe want of proof to sustain ber answer. The matters contained in her answer which are relied upon as a defence, are not responsive to tbe bill, except as regards tbe single allegation that tbe mortgaged premises were occupied as a'homestead. Therefore, to render them available, they must be proved. There is no proof of ber illness, of her unconsciousness — not a vestige of evidence to impeach ber signature, or ber acknowledgment of tbe mortgage; and .the same remarks as were made before as regards the substitution of one set of notes for another, apply equally to this defendant.
It is true the complainants aver, and tbe defendants Starr and wife admit, that tbe premises were occupied as a homestead. Hence their mortgage would not be valid, even as against the husband, without tbe signature of tbe wife. But that signature they exhibit, a.nd it is for those who would impeach tbe mortgage to show that ber signature was obtained by undue means, or under circumstances that would vitiate it. This, as before remarked, they bave failed to do.
It is suggested that tbe decree of tbe court below does not sufficiently protect Rowley, the prior mortgagee, and bad be appealed, tbe decree would be so modified as to him as to secure beyond any contingency tbe payment of bis mortgage. Tbe complainants, however, offer now to redeem bis mortgage, which will accomplish all that any modification of tbe decree could bave done, even if be bad prosecuted an appeal.
Decree of tbe court below affirmed with costs.