GREY, V. O.
Suit by William B. Pike, executor, etc., against Caven Henderson and others, to foreclose a mortgage. Petition by a defendant to set aside a final decree of foreclosure rendered after a decree pro confesso. Petition granted.
M. V. Bergen, for complainant.
Wm. B. Knight and Samuel H. Richards, for defendants.
GREY, V. O. (orally). This is a bill to foreclose a mortgage made by Lewis C. Smith and Sarah Jane Smith to John Horn on lands in the city of Camden. By several assignments of the bond and mortgage, it came from Horn, the mortgagee, to the wife of the mortgagor, Sarah Jane Smith, who afterwards married one Laconey. She was an illiterate woman. She signed her name to the mortgage by making her mark. As Sarah Jane Laconey, while holding the mortgage, she died, and the bill presently before the court is filed by her executor to foreclose the mortgage. The complainant seems to have made defendants all persons in interest, and to have regularly proceeded to a decree pro confesso, master's report, final decree, execution, and advertisement for sale. On the day of the sale, or the day preceding, a petition was presented in the cause by one of the defendants, who was also one of the heirs at law of the mortgagor, Lizzie Henderson by name. She asks that the decree be opened in order that she may file an answer and a cross bill in the case, setting up the payment, cancellation, and satisfaction of the mortgage, and the accompanying bond, and praying that the same may be decreed to be a nullity and of no effect against the petitioner. It appears to be undisputed that before the bill of foreclosure was filed the mortgage and bond had been canceled, so far as their face shows; that is, the seals had been torn off the mortgage and the bond, and the mortgage had been taken to the clerk's office, and a memorandum entry there made by the clerk that the same had been canceled of record. The petition says the mortgage has been paid. It might have been destroyed and canceled of record without being paid. That is what the complainant says was the fact. The bill of complaint makes no disclosure of the circumstances, and does not in any way refer to the destruction and cancellation of the bond and mortgage and its record. When the decree pro confesso had been taken, and no question could be raised in evideuce as to the destruction of the bond and mortgage, explanatory proof was made by the complainant, by producing before the master a witness who claims to be acquainted with the reasons for the destruction of the instruments, who shows they were canceled by mistake. The petitioner, Henderson, is one of the defendants against whom there has been a decree pro confesso and a final decree; and under those circumstances the rule is entirely well established that, in order to be let in to defend, she must show surprise and merits; that is, surprise in the sense that she had no fair opportunity to put in her defense to the complainant's suit. I think the case is extremely close upon the question of surprise. The only way I can reconcile the apparently conflicting statements of the petitioner and those of her lawyer, Mr. Scovel, is to believe that she misunderstood what he said to her. She said that she understood that he was to advise her further as to any steps necessary to be taken, and she heard nothing from him. He says that he told her that he could not take any steps unless she advised him further. On that point they stand at variance. The petitioner is a woman apparently unacquainted with business or legal matters, and may have misunderstood her lawyer's instructions.
On the question of merits, I do not understand it to be the law, as contended by counsel for complainant, that a person who seeks to open a cause is, in showing merits, obliged so affirmatively to prove a case that the court must determine, in favor of the petitioner and against the adverse affidavits, that the facts shown would justify a decree in favor of the defendant petitioner. That is not showing merits. That is hearing and trying the cause. The rule as to merits is that the defendant must exhibit such a meritorious case as is worthy to be submitted to the determination of a court to say whether or not there ought to be an adjudication in her favor. Courts are always liberal, and should be liberal, where there has been no litigation upon a point, to admit defenses to be made, and especially where no serious harm will be done to the other party by allowing the litigation. Easy and quick litigation is really the protection of the citizen. In this case there has been no contested inquiry as to the satisfaction of this bond and mortgage, although it is admitted the seals have been torn off both and the record of the mortgage has been canceled. I think the defendant should have her day in court to show, if she can, that the allegation of her petition is true, when it avers that this bond and mortgage and record were canceled because of actual payment. To enable her to do this, the case should be opened, if the petitioner chooses to undertake the litigation upon the terms which ought to be imposed upon her. Here is a foreclosure suit, which has gone by regular steps to final decree, execution, and advertisement for sale. It would be quite unjust, where this petitioner sets up only a single line of defense, to allow her to defend generally. She should be restricted in her defense to the lines indicated in her petition—actual payment of the bond andmortgage. She must also, in view of the lateness of her appearance as a litigant, and the regularity of the procedure of the complainant, pay the costs from the decree pro confesso to the advertisement of sale, including both. She avers actual payment, and should be excluded from any defense based upon presumptive payment, and from any defense based upon the statute of limitations.
I will advise an order that upon payment of costs, to be taxed as above noted, the petitioning defendant may file an answer setting up as her sole defense the actual payment and satisfaction of this mortgage, and a cross bill praying that it be delivered up and that the cancellation of record be validated, but not defending on any claim of payment based upon any presumption of law or upon the statute of limitations, or any other ground than actual payment made in money or value.
Counsel for petitioner probably presented this petition without any knowledge of the explfmation which the complainant comes here and makes, by the witness who swears that this cancellation was a mistake, which came about in part in his office. Whether that is a full and accurate statement of all the facts of this cancellation has never been tested, and, if the petitioning defendant desires to test that, she ought to have the opportunity.
Mr. Bergen: From the decree pro confesso down to the sheriff's costs? The Vice Chancellor: Yes.