This was a bill in equity by Hillibert against Stark and Wife to foreclose a mortgage, executed by them to complainant to secure the payment of a bond for money, made in 1838. The respondents answered, admitting the original indebtedness and mortgage, and set up payment through an award between the parties, made in 1842; and also, by an amended answer, set up usury in the original consideration of the bond. A replication was filed to the original answer, but none was filed to the amended answer.
The parties having gone to trial upon the evidence taken, and treated the cause as at issue, the respondents will be deemed to have waived the necessity of replication, and the cause will be treated in this court as the parties themselves have done upon the trial below, — as though completely at issue. Webb v. The Alton M. and F. Insurance Company, 5 Gil. R. 223; Jameson v. Conway, ibid. 227. There is no proof of usury in the record, and the only remaining matter for inquiry is, whether the evidence establishes the defense of payment. This is for the respondents, independent of their answer, to prove. The bond and mortgage making a prima facie case, the defense of payment set np in the answer is not to be taken as responsive to the allegations of the bill, but like any other defense of an affirmative character, admitting the original obligation in the bill alleged, must be proved by the party bringing it forward, in evidence of that obligation. Story’s Eq. Jur., sec. 1629.
The evidence clearly shows that the arbitration and award relied upon in the answer, were not between the parties to this suit, but were between the respondent, Stark, and one Shetler, and concerning the value of certain other lands and improvements thereon made by the erection of a mill by Stark; and which property Hillibert before then had contracted to convey to Stark upon paying the consideration therefor, and which Stark was then negotiating the sale of his interest in to Shetler. The award, therefore, can have no effect upon the mortgage debt, — arising out of another transaction and subject matter than that to which the arbitration related. It is evident, or at least probable, from the whole case, that Stark, in his negotiation with Shetler for sale of the mill property, was endeavoring to save to himself the value of the improvements he had put thereon, and transfer his liability to Hillibert on his purchase of the property, to Shetler. The final result was, that the contract of sale of the mill property by Hillibert to Stark was rescinded, and Hillibert executed his contract for conveyance of the same, upon payment of a consideration expressed, to Shetler; and it is proved that Stark got a portion of what Shetler paid for the property. Indeed, it is the most natural and probable conclusion, from the whole case, that the re-sale of the mill property by Hillibert to Shetler was by arrangement between the three, Shetler, Hillibert and Stark, for the purpose of enabling Stark to get out of the property the value of his improvements, and to secure and provide for payment to Hillibert, through Shetler, the new purchaser, of the original unpaid consideration for the land.
There is, however, some evidence of admissions of Hillibert, tending to prove payment of the mortgage debt. The conversation in 1845 between Hillibert and the witness Blackburn, evidently had reference to the mill property transaction, and not to the mortgage debt. The witness understood, he says, the arbitration was concerning the mortgage, and says the mill property and the arbitration were talked of, yet he knew nothing about the mortgage, nor did he know what was said about the mortgage, if anything.
The settlement made in 1842, to which Kidwell testifies, also related to the mill property, and nothing was said, nor did the witness know anything about the mortgage debt.
The answer alleging payment through the operation of the award, the respondents must prove such payment substantially as stated. It is clear that the award was not binding on Hillibert and that it had nothing to do with the mortgage debt. And loose conversations of Hillibert in reference to other transactions made when the mortgage diebt was not in question, and where there can be no moral certainty they had reference to this debt, are insufficient to avoid the prima facie legal liability arising from the bond and mortgage.
Decree affirmed.