The opinion of the court was delivered by
Bennett, J.This case goes to trial upon the bill, answers, and traverse; no evidence having been taken to sustain the answers.
If the facts set up by the answer as a defence, are not responsive to the bill, it is too well settled, to need authority, that the answer is no proof of such facts. The defendant, Marshall, claims, by his answer, that he purchased of the orator the seven shares of land which had descended to the seven children of Levi Lane, of whom the orator was one, at the sum of seven hundred dollars; of which he had paid four hundred dollars, and gave his note for $300, which note is the one now in question. The answer proceeds to allege, that the "orator had a title to but four of the shares, and that, at the time of the purchase, the orator agreed with this defendant to give him a bond, with surety, to indemnify him against the outstanding title in the other three heirs ; but that he had absconded without doing it, and that he was exposed to be ejected from the premises. The orator makes out his case by the exhibition of his note and mortgage, and the burthen of proof to impeach it, is upon the defendants; and when the defendant, Marshall, attempts, in his answer, to go into the facts set forth, with a design to show a want, *88or failure of consideration for this note, he departs from the bill. It is matter in avoidance, if any thing, of the orator’s mortgage, and should be proved. Whether the facts set forth in the answer of Marshall could avail the defendants, if proved, it is of no importance to inquire.
The result is, the decree of the chancellor is affirmed, with additional costs, with the alteration, that the time of redemption be extended to the first day of August, 1843 ; and the case is remitted to the court of chancery to be- proceeded with accordingly.