Blankman v. Vallejo

Baldwin, J. delivered the opinion of the Court Field, J. concurring.

t Bill filed by the respondent to foreclose a mortgage. The mortgage was made to secure a debt of $ 30,000.

Two errors are assigned: 1. That there was a variance between the bond offered in evidence and that described in the mortgage, and therefore, the mortgage was improperly admitted in evidence.

It is not pretended that there was any variance between the bond and the complaint. The point is, that the mortgage recites a particular bond, and that the bond offered in proof does not answer to this description. But this is not matter of variance, properly so-called; it [644]is a mere question of identity. If it had been matter of variance, such as in common law actions would have excluded the proof—as not corresponding with the allegation—from the jury, the Court should, and would, at once, have permitted an amendment, so that the proof and the averment might be consistent; for the time has long gone by when small clerical misprisions of this sort are allowed to prevail against the merits of a case. But we understand the rule to be that when a mortgage is given to secure a debt, it is not of the essence of the deed whether the debt be evidenced by one form of contract or another. All that a Court of Equity desires to know in such cases is, what is the debt really intended to be secured; and whether it is called a note or bond is immaterial, so that the debt itself be identified as that for which the mortgage is given. (Jackson ex dem., Merritt v. Bowen & Neff, 7 Cow. 13.) But if this were not so, the answer of the defendants, in the second paragraph, admits the execution of the bond described in the complaint—though it denies the delivery. The bond in the complaint answers to the description of the bond offered. There is no denial in the answer that, to secure this bond, the mortgage set out in the complaint was executed. The general denials (as we have often held) which are sometimes made by traversing literally and conjunctively the statements of a sworn bill, are not legitimate for the purpose of putting in issue specific allegations; for a party may well deny in this way the entire charges in form as stated against him, in consistency with admitting the truth of the specific charge, or even the substantial fact; relieving his conscience under the notion that he has only denied dll to be true which is alleged against him, and not each and every part. But the object of the rules of pleading is to prevent any such evasion, and to require a denial of every specific averment, and this in its substance and spirit, and not merely a denial of its literal truth; and the defendant is held to an admission whenever he fails to make suvch denial. This was the law' of the old equity system of pleading, whose rules were probably the most perfect for the elucidation of truth ever devised; and they are not less the rules of our present system. (Sto. Eq. Pl., sec. 852, et seq.)