No brief on file.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The plaintiff set up his right to the property by virtue of a conveyance which was shown to be a mortgage. The defendant on the cross-examination attempted to show that the mortgage had been satisfied, but was prevented from obtaining an answer from the witness on the ground that it was an examination into matter not introduced by the direct examination.
Under any rule the Court decided incorrectly. If the plaintiff could claim under the mortgage, it certainly was not new matter even under the rule which the respondent relies on, for the defendant to show there was no mortgage, by showing its discharge. This proof, together with that subsequently offered, showing that the plaintiff had no possession of the property at the time of the alleged trespass, would have been conclusive against the plaintiff. It would have given him the character of a stranger to the transaction, and consequently denied him the right to sue.
The judgment is reversed, and the cause remanded.