Suit to foreclose a mortgage. The appellants, who were the mortgagors, together with several junior incumbrancers, were made defendants. They were all defaulted, except appellants. At the March term, 1859, appellants answered in several paragraphs,- and filed interrogatories to be answered by the plaintiff, and asked a rule upon him to compel such answer, which was refused. The case was continued for several terms, until the February term, 1860, at which time defendants, on leave, filed an amended first paragraph to their answer; an affidavit of said French, as to the materiality of an answer from plaintiff to the interrogate*144ries before then filed, and, also, asking a continuance to obtain the testimony of one Crossman. The Court refused to order an answer to the interrogatories, or to continue the 03,11136, Upon these rulings, errors are assigned, and presented in the brief of appellants.
To determine the questions involved' we must refer to the issues.
The first paragraph of the answer, as amended, averred that the real, beneficial and equitable interest in the mortgage and notes was in the firm of Blanohard, Converse c& Co., the names of all the partners, there being several, not being known to defendant; that the consideration therefor, was goods, the property of that firm, and purchased of them; that the interest of the other partners therein had not been assigned in any way to plaintiff, but that he was seeking fraudulently to collect the money, ánd appropriate the same to his own use. Eeply in denial.
Second, usury; reply, denial. Third, as to cost and interest, usury; reply, denial. Fourth, that for the original consideration two notes were executed to the firm, which did not waive valuation, &c.; that the mortgage and notes sued on were afterward executed in lieu of said two notes, and intended by the parties to conform thereto in that respect, but through the false representation of plaintiff, and the mistake of the defendant, who had not an opportunity to examine said two notes, they were made to waive, &c. Prayer that they be reformed in that particular. Eeply, denial.
As to the fifth a demurrer was sustained, and no question is here presented. Sixth, denial; seventh, that plaintiff is seeking to enforce a judgment rendered theretofore on said notes, &c.; denial in reply.
The interrogatories filed, and the refusal to compel answers to which is now complained of, were as follows:
1. “ Have you any greater interest pecuniarily in this suit than the other members of the firm of Blanohard, Converse & Cot
2. “Do you own in your own right, and free from all claims of the said firm, the mortgage now sought to be foreclosed ?
*1453. “ Is it not true that the said firm still own and hold an equitable interest in said mortgage?”
The affidavit of French stated that he could not safely try, without the answer of plaintiff, by which he expected to show , , , . „ ’ ' ■ ,, , that the other members oi said firm were equally the owners of said notes and mortgage; that the original consideration was the sale of goods as pleaded ; that the other members of the firm have not assigned their interest to plaintiff; and that plaintiff resides, and now is, in Boston,.&c.; that said facts are true, and he knows of no other witness, &c.
It is insisted by the appellee, that appellants were not entitled to the rule to compel an answer to the interrogatories ■ at the February term, 1860, for two reasons: first, that by diligence he might have obtained «the testimony of plaintiff after the interrogatories were filed; second, that they are estopped from setting up the facts sought to he elicited hy the answers, because of the execution of the mortgage, &c.
To this it is answered, in argument, that plaintiff can not avail himself of the estoppel without pleading it; and that there was not a want of diligence in attempting to procure an answer to interrogatories; which ivas a mode the defendants had a right to choose in procuring the evidence.
We do not think there was any want of diligence, in the efforts of the defendants to procure answers to the interrogatories ; in view of the decision on the demurrer to the first paragraph of the answer at the March term, 1859, and the leave granted to file an amended first paragraph, intended to put in issue the same facts, filed at the February term, 1860.
It may he possible that if the first paragraph originally filed, to which the interrogatories were applicable, had not been demurred to, that the defendant would, at the February term, i860, have been dilatory'in- then asking to enforce an answer. But as the Court then permitted that answer to he perfected, the defendants had a right to a response to the interrogatories, unless something, other than the question of diligence, intervened.
This brings us to the next question; for if the defendants were estopped from making the proof sought, and the plaintiff was in a condition to avail himself of the estoppel, *146it was useless to continue for the evidence of the said plaintiff.
The mortgage operated as an estoppel. Trimble v. The State 4 Blackf 435; id. 553; 3 Ind. 449; 7 id. 213; 5 Peters, 257. The estoppel was apparent upon the face of the pleadings, and therefore a demurrer to parts of the answer, if filed, should have been sustained. None was filed, but issue was taken upon the objectionable parts of the answer. Was the estoppel available, under such circumstances, to exclude evidence offered upon the issue thus made? We aré of opinion it was not. The plaintiff did not see proper, by demurrer, to rely upon the estoppel, and rid himself of the issue of fact tendered; but waiving the conclusiveness of such estoppel, he formed the issue of fact, and the defendants were therefore entitled to offer evidence upon that issue. 1 Greenl. Ev. § 531; Picquet v. McKay, 2 Blackf. 468; 4 id. 437. And under our statute they were entitled to the answer of the plaintiff to the interrogatories above noticed.
It is insisted that the Court erred in not continuing for the evidence of one Crossman. The affidavit filed, to procure such continuance, did not allege that he was a competent witness, nor did it specially show the facts expected to be proved by him; but averred that the affiant expected to prove “ all the material allegations in the second, third and fourth paragraphs of his answer;” neither did it aver that the same facts could not be as readily proved by some other witness. The affidavit was not sufficient.
The next objection is that the judgment is erroneous, in this, that it is not only for a foreclosure of the mortgage, but directs that if the mortgaged premises do not sell for sufficient to satisfy the debt that execution issue, &c.; and that the latter part of the judgment could not be rendered, as the record shows that a judgment, had before that time been taken upon the notes, and had consequently merged the same, &c. v
The plaintiff does in his complaint, in stating the amount due him, aver that the whole of the principal and interest are due, except that he had theretofore recovered judgment upon *147said notes, and realized thereon the sum, &c.; but he does not plead, nor rely upon, said judgment, and we are therefore of opinion, that it is not so distinctly stated in the pleadings, as to enable us to pass upon the question sought to be presented, in that respect.
II. O. Newcomb, John Tarlcington and J. II. Mattoclc for the appellants. J. A. Liston, for the appellees.A new trial should have been granted
Per Curiam.The judgment is reversed, with costs. Cause remanded, &c.