Whitlock v. Fiske — 3 Edw. Ch. 131

Majority

p. 131

Whitlock v. Fiske and others.

July 12, 1837.

Headnote

Pleading. Plea. Deed.

Where a deed is set up in a plea, it is not sufficient to say, it was “ executed in due form of lawdelivery and acceptance also must be averred.

Bill of foreclosure. The defendants, Samuel C. Fiske, who was the mortgagor, had assigned the equity of redemption upon certain trusts. His assignees were not made part ties ; and in taking advantage of this by a plea, he said that he executed the assignment in due form of law and for a sufficient consideration.

Mr. Ellingwood, in support of the plea.

Mr. BrincJcerhoff, contra.

p. 132

Sept. 12.

This plea is defective in substance, in not averring delivery of the assignment and acceptance of the trusts and conditions of it by the assignees, and that they have become vested with the equity of redemption-of the mortgaged premises. To say that the defendant “ executed, in due form of law and for a sufficient legal consideration, &c.” is not enough. It may be true and still the assignees have no claim or interest in the property, for want of delivery of the deed or acceptance of the trust. The averments of the plea must be clear and precise, and such as are necessary to avoid all ambiguity of meaning and exclude all intendments ; since it is a rule of construction that the language used is to be taken most strongly against the pleader. If we allow the averments to be true, but, at the same time, a case may be supposed consistent with it, which would render the averment inoperative as a full defence, such case will be presumed or intended, unless excluded by particular averments : Lube, 342, 343. This principle of pleading applies to the present case ; and shows the plea to be defective.

Order accordingly, overruling the plea, with costs.