Ord v. Bartlett

Belcher, C. C. — On the twenty-fourth day of January, 1877, William M. Ord executed to the plaintiff (then Mrs. Anne E. Williams) his promissory note for seven hundred dollars, and a mortgage to secure payment of the same. Subsequently the plaintiff became the wife of Ord, and there was born to them a child named Anne Victoria Ord. On the 26th of April, 1882, Ord died intestate, leaving him surviving the plaintiff, his widow, and the child, Anne Victoria, as his only heirs at law. Administration on the estate of the decedent was taken out, and S. A. Bartlett was duly appointed the administrator thereof.

The plaintiff commenced this action to foreclose her mortgage, making Bartlett, as administrator of the estate, and other parties, defendants. As to the defendants other than Bartlett, the complaint alleged that they had, or claimed to have, some interest in or claim upon the mortgaged premises, which interests or claims were subsequent and subject to the lien of the plaintiff’s mortgage.

[430]Bartlett allowed a default to be entered against him. The other defendants answered, and, among other things, denied that their interest in or claim upon the mortgaged premises was subsequent or subject to the lien of the mortgage. They then, “ for a separate answer and defense,” alleged that, under a deed executed by the decedent, Ord, in April, 1873, — of which deed the plaintiff had full notice when she took her mortgage,-—-they became the owners, and “ have continuously been and are now seised and the owners of all the right, title, interest, and estate of said grantor in and to the whole of said premises; that the said claim, interest, and estate of these defendants, and each of them, is and always has been prior to and superior to the lien, or any lien, of said mortgage, and is not and never was subsequent to or subject to the same.”

.To this last defense a general demurrer was interposed and sustained. The case was then tried, and judgment was rendered foreclosing the mortgage as against all of the defendants.

A motion for new trial was made and denied, and the appeal is from the judgment and order.

The principal question presented for decision relates to the action of the court in sustaining the demurrer. It is claimed that the ruling in this respect was erroneous, because, if the averments were true, the appellants “ should have been allowed to show it, for that would have dismissed the action as to them,”