Rawlins v. Ferguson

TEMPLE, J.

This is an action upon a promissory note, brought the day before it would have been barred by the statute of limitations. The defense attempted is in the nature of a plea in abatement, that the note was secured by a mortgage, and only a suit to foreclose such mortgage can be maintained.

The pleadings are verified, and the amended answer makes no denial sufficient to throw the burden of proof upon the plaintiff, except as to the allegation that two hundred dollars is a reasonable fee for plaintiff’s attorney. In regard to that no question is made here.

The objection is made here that the affirmative defense is also insufficiently pleaded, and would have been held bad on demurrer. The objection is well founded as matter of law, but cannot avail respondent. There was an attempt to plead such defense, and the pleading was sufficient to enable plaintiff to understand the issue which defendants were endeavoring to make. Upon this, plaintiff went to trial, without having objected by demurrer or otherwise. She will not now be heard to say that there was no such issue to try.

The court found very fully, upon this matter, in favor of plaintiff, that the debt was not, and never had been, secured in any mode. This finding is attacked, and it is contended

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that the affirmative of the issue was established without conflict. This is the only question of importance in the case.

The loan was made by plaintiff, through her agent, Jackson, who was also her attorney. The money was derived from an insurance upon her husband’s life, and after her husband’s death was collected from the insurance company, by Jackson, as her attorney. She authorized him to lend it for her, directing him to consult her about proposed loans, and to take security on first mortgages. December 9, 1891, he made this loan for her to defendant Ferguson, of two thousand dollars, taking his note, payable to plaintiff, and signed by all the defendants. The note, by its terms, was due four months after date. It was not secured by mortgage or otherwise, except that the three defendants, other than Ferguson, were in fact sureties. This suit was brought April 8, 1896, by Jackson, as attorney for plaintiff. Jackson also verified the complaint, and at the same time sued out a writ of attachment, to obtain which he, in person, made the statutory affidavit, which contained this language, referring to the note sued upon: “ and that such contract was made and is payable in this state, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property.” Soon after this suit was brought, differences arose between plaintiff and her said attorney. She not only dismissed him as her attorney, but caused a criminal prosecution to be commenced against him.