Schmidt v. Mackey
Schmidt v. Mackey
Opinion of the Court
—The record in this case presents a most extraordinary incongruity in the pleading, the proof, and the judgment of the court. The petition is made upon a note, alleged to have been given as the purchase-money for a lot in the town of Columbus, which is described as embraced in two rectilinear boundaries. This is mathematically impossible. It also alleges that a mortgage was given upon the lot to secure the payment of the purchase-money, of which mortgage proferí is virtually made, and it was necessarily a part of the evidence on the trial, as a foreclosure of the mortgage was prayed for in the petition. The mortgage itself sets out that the lot was included by three right lines, making a triangle. The judgment of the court is. the foreclosure of a mortgage upon a lot bounded by four right lines, constituting a parallelogram.
There is no allegation in the petition that there was any mistake made in the execution of the mortgage, or in describing or setting out the abuttals of the lot, and that it was intended to embrace the identical lot for which the judgment of foreclosure was pronounced. Nor was there any amendment of the petition, so as to show and properly define the lot sought to be subjected. The general demurrer to the petition ought to have been sustained, and leave given the plaintiff' to amend, if he desired to do so. The original allegations in the petition were undoubtedly insufficient to warrant a judgment of foreclosure, because the mortgage did not and could not sustain an impossible allegation. Nor does the mortgage itself, the basis of the judgment of foreclosure, sustain the judgment of the court. There is an utter incompatibility between the petition, the
Reversed and remanded.
Reference
- Full Case Name
- Charles Schmidt v. John Mackey
- Status
- Published
- Syllabus
- Where the petition was founded upon a joint and' several promissory note,, executed by four defendants, and also prayed for a foreclosure of a mortgage upon a lot, being part of another lot, whereon was S's store; but, in the effort to describe the lot, the petition only called for two rectangular lines, and the mortgage, which was attached as an exhibit, only called for three lines, omitting the northern line, and calling for the closing line as a diagonal, instead of the last line of a parallelogram, and the only defense was a demurrer, setting forth special causes, having no reference to these mistakes, and a general denial, and the cause was submitted to the judge, who overruled the demurrer, and rendered a money judgment against all the defendants, and a decree of foreclosure for the sale of the lot by proper descriptive calls: Held, that the general demurrer ought to have been sustained, and the plaintiff allowed to amend his descriptive calls and to aver a mistake in the mortgage, (if it was. correctly copied:) also held, that the court could not presume in favor of the judgment, because there was no predicate laid in the pleadings for proof which would support the decretal order of sale of a lot not described in the pleadings; and, because of the error, in the foreclosure, the whole judgment was reversed, and the court below instructed to allow an amendment.