The only question presented for our decision is, did the court below err in decreeing that the forty acre tract, owned by Morton, is held by him discharged of the lien of the trust deed sought to be foreclosed. In the foregoing statement of the case so much of Morton’s answer raising that issue and substantially all the evidence bearing upon it is set out, and a casual examination thereof will, we think, make clear our reasons for reversing the decree. The argument of counsel seems- to proceed upon the assumption that the defense set up is that Ryhiner & Co., after the assignment of the notes secured by the trust deed, by their agent Cone, agreed to release, or procure a release of the forty acre tract, and authorities are cited on both sides as to defenses available to the mortgagor or his grantee against the assignee of the debt secured by the mortgage, growing out of equities between the defendant and the mortgagee, appellee relying upon the case of Towner v. McClelland, 110 Ill. 542, to sustain the decree, while appellant, arguing on the same hypothesis, cites Keohane v. Smith, 97 Ill. 156. Applying .the elementary rule of practice both in law and equity, that the allegation and proof must agree, the question discussed does not arise. By, his answer the defendant, Morton, did not pretend that in his negotiation for a release he dealt with Cone as the agent of Ryhiner & Co. On the contrary he avers in every part of it that he was the agent of the complainant, Carrels, and that whatever contract he made with him was in that capacity. By his answer he admits that at the time he contracted with Cone he knew that the complainant, Garrels, was the owner of the negotiable notes secured by the trust deed, which were then not due, and by that averment he is bound. How can it then be said that any question- as to the equities between Ryhiner & Co. and Morton is involved in the decision of this case? The issue, submitted to the court, was whether or not the legal holder of the notes and the equitable owner of the trust deed, Garrete, by his agent, George W. Cone, agreed to procure the release. On this issue the burden of proof was upon appellee Morton. There is no evidence in the record tending to prove it. Cone swears positively that he “never was agent for any of the assignees of the notes involved in this suit.” Whatever equitable rights appellee Morton may have under a proper state, of pleading, this decree can not be sustained. It is therefore reversed and the cause remanded with directions to the court below to allow the defendant, Morton, to amend his answer if he shall so desire.
Reversed cmd rema/nded.