Trusdbll v. Dowden

VAN FLEET, V. C.

(Syllabus by the Court.)

On motion to strike out part of the defendant's answer.

Robert H. McCarter, for plaintiff. Frederic W. Stevens, for defendant.

VAN FLEET, V. C. This action is founded on a bond and mortgage bearing date February 14, 1890, made by James C. McGeragle to the complainant, whereby McGeragle bound himself to pay $5,000, with interest, at the end of four months from the date of the bond and mortgage. The bill alleges that McGeragle subsequently, and on the 18th day of April, 1890, conveyed the mortgaged premises to the defendant, subject to the complainant's mortgage, and that the deed to the defendant contains a clause which reads as follows: "Said premises are conveyed subject to a mortgage for $5,000, dated February 14, 1890, and recorded in Book B 10, p. 488, which said mortgage is held as collateral security for the payment of certain promissory notes." The defendant has answered. He denies that the deed made to him is in fact what it purports to be on its face, but says, on the contrary, that it is only a mortgage. He says that it was understood between the grantor and himself, when the deed was executed, that he should hold the land described in it as security for a debt that the grantor owed him, and that, on the payment of thenor is it possible to make it the foundation of an estoppel. The complainant's application must be denied, with costs.