Fisk v. Casey

Foreclosure of Mortgage—Conveyance—Defense—Claim of Ownership by Mortgagee—Refusal to Accept Offer of Payment—Burden of Proof—Finding—Conflict of Evidence.—In an action to foreclose a mortgage, made in the form of a conveyance to secure a note of the defendant, where the defendant pleaded as a defense that after the maturity of the note he applied to the plaintiff to ascertain the amount due thereon, for the purpose of paying the same, and having the property discharged from the lien of the mortgage, and that upon such application the plaintiff claimed to be the owner of the property, and refused to entertain any offer from the defendant to pay off and discharge the mortgage, the burden is upon the defendant to establish such defense to the satisfaction of the court by a preponderance of evidence, and where the evidence is conflicting as to what occurred between the parties, and the court finds that the plaintiff did not make the claim and refusal alleged, a judgment for the plaintiff will not be disturbed upon appeal.

Id.—Argumentative Pleading—Offer of Payment.—The answer should „ not allege an offer of payment argumentatively by a mere allegation of refusal, but it is incumbent on the defendant, if he would claim that the plaintiff was not entitled to interest after such offer and refusal, to allege such defense with definiteness, and to prove that it is well founded.

Id.—] Binding not Controlled by Oral Declaration of Judge—Affidavits not Permissible to Impeach Finding. — The finding of the court that plaintiff did not claim to be the owner of the property, and did not refuse to entertain any offer from the defendant to pay off and discharge the mortgage, is not controlled by an oral declaration of the judge, made at the time of announcing the decision for the plaintiff, that he believed the testimony of defendant’s witnesses concerning the interview; nor can the finding of the court be impeached by affidavits of what occurred when the decision was announced.

Id.—Amendment of Answer—Insufficient Defense—Parol Agreement to Pay Taxes on Mortgage—Evidence—Variance of Written Agreement for Interest.—The court may properly refuse to allow an amendment to the answer which sets forth an insufficient defense, by alleging that at the time when the promissory note was made, which was secured by the conveyance of the defendant’s land to the plaintiff, ife was orally agreed between them that defendant should pay all taxes assessed on the land, including the taxes on the mortgage, the object of evidence of such parol agreement being to vary and destroy the written agreement for interest contained in the note, which could not be varied by proof of the averment of such parol agreement; and it is immaterial that the mortgage existed by virtue of a parol agreement that the deed should be given as security for the debt.