ALLEN v. 0’DONALD. 17
ALLEN v. O’DoNA1.n and others.
(Circuit Court, D. Oregon. July 19, 1886.)
1. HUSBAND AND Wrr·n—Mom·oAom BY——RELEASE or- Wr1=·m—SAr.m or Pnormnr!
—R1om·s on Cnmprrons.
A husband and wife joined in a mortgage, including certain property be-
longing to each, to secure the payment of the husban ’s debt, and after the
debt was due the husband, with the assent of creditors, conveyed his property
to a third person in trust, to manage the same, aud, with the consent of the
debtor, to sell and dispose of the same, and apply the proceeds on the debt;
in pursuance of which authority said trustee sold a portion of said prolperty,
and applied the proceeds accordingly, and thereupon the creditors re eased
their mortgage on the same. Held, (1) that the property of the wife was not
discharged from liability for the remainder of the debt by such release unless
she was pecuuiarily injured thereby; (2) that a provision in such mortgage
that, in case of default in the payment of the debt, the mortgage may be fore-
closed according to law, is mere surplusage, and did not prevent the debtor
and creditors from making other arrangements for the disposition of his prop-
erty in satisfaction of the debt, and the release of the same from the mortgage,
without affecting the liability of the wife’s property, unless it appeared that
the property was sacrificed or disposed of at less than its market value, to her
injury; (3) that the burden of proof is on the creditor to show that such sale
was fair. and the proceeds justly applied, or that the property of the wife was
n ot thereby wrongly made to bear any more than its proportion of the debt; (4)
that the voluntary forbearance of the creditors to sue the debtor while this am-
icable arrangement between him and them for the disposition of his property
was being carried out, did not amount to an extension of time to the debtor
which would discharge the property of the wife from the mortgage, for such
forbearance was neither for a time certain, nor for a valuable consideration,
and left her at liberty to lpay the debt, and proceed against the husband, sub-
rogated to the rights of t e creditors.
2. EQUITY—LIMITATIONS—NOTE AND MORTGAGE.
The rule of limitation in a suit in equity on a note and mortgage to recover ‘
the contents of the former, and enforce the lieu of the latter therefor, is the
same as in an action thereon at law}
3. C0un·rs—J UmsD1or10N or UNITED Srarus Cmcurr CoU1u·-—Pn0mssoRY Norms)
—Nnoo*r1AmLr•rr.
By the law-merchant a promissory note payable to order or bearer is nego·
tiab e as long as it exists unpaid, and the indorsee or assignee thereof may,
under section 1 of the judiciary act of 1875, (18 St. 470,) sue thereon in this
court without reference to the citizenship of his indorser or assignor.
4. STATUTE or- LIMITA'l`IONB—·PART PAYMENT ON Norm.
Under section 25 of the Code of Civil Procedure a payment on a promissory
note, at any time after its maturity, by any one who may be compelled to pay
the same, constitutes the point of time from which the limitation against an
action thereon commences to run.?
5. EQUITY—EVIDENCE¥NEW MATTER IN Answmn.
New matter in an answer in equity, or an allegation not responsive to the
bill, is not evidence, and the burden of proof is on the defendant to support it.
6. SAMm—ANswmRs ON INFORMATION AND Bmnmr-Wmrerrr.
General allegations, made on information and belief, without any verifying
circumstance of time, place, or amount, even when responsive to the bill, are
not entitled to much weight as evidence.
Suit to Enforce Lien of Mortgage.
George H. Wtllmms and Henry Ach, for plaintiff.
!See note at end of case. part 1. ’See note atend of case, part 2.
v.281¤.n0.1——2 .