Opinion
12-30-1887
CONWAY et al. v. WILSON.
J. W. Morgan and E. A. Armstrong, for complainants. J. W. Wartman, for defendant.
Bill to foreclose chattel mortgage.
On motion to strike out answer. The facts appear in the opinion.
J. W. Morgan and E. A. Armstrong, for complainants. J. W. Wartman, for defendant.
BIRD, V. C. The motion to strike out goes to the whole answer, and in the language of the notice is because "(1) that said answer is not responsive to the allegations of the bill of complaint, and does not set up any defense to said bill of complaint; (2) that said answer admits all the equity claimed in the bill." The last reason given makes it most plain that the motion is too broad. Where the complainant expressly charges an equity, and calls upon the defendant to answer such charge, he cannot call on the court to strike all the answer out because it, or any part of it, admits just what the complainant alleges. It would be most absurd to call upon the defendant to respond, and when he does, and admits the claim, to strike out all his admissions. I had been taught that this method of compelling a defendant to speak was one of the great objects and benefits of equity pleading. Therefore I cannot say that the whole answer must be stricken out. Strictly speaking, I might rest here; but as another point was fully discussed, I will look at it.
The answer sets up that the complainant had his claim secured by mortgage on goods and chattels, and that he proceeded at law and recovered judgment for the amount due on his claim, issued an execution, made a levy on the same and on goods other than those covered by the mortgage, and then, without selling or realizing anything therefrom, directed the sheriff to surrender all the goods so levied on to the defendant, and that the sheriff did so; and from the facts it is claimed that the complainant no longer has any claim. Supposing all this to be well pleaded, the argument is that the complainant, having once had a levy on goods enough to satisfy his demand, his demand is presumed to be satisfied. The defendant relies on Freem. Judgm. § 475, and this is the general rule. Hanness v. Bonnell, 23 N. J. Law, 159; Carr v. Weld, 19 N. J. Eq. 319; Banta v. McClennan, 14 N. J. Eq. 120; and Johnson v. Tuttle, 9 N. J. Eq. 365. But this rule cannot be applied when the defendant himself has received the goods and retains them. Hanness v. Bonnell, 23 N. J. Law, 159. He cannot have the consideration and the security both.
Another claim presented by the answer is the same exemption from the mortgageas that given by the statutes in cases of executions in favor of the debtor. This right, in case of executions, is purely statutory, and counsel admits that the legislature has not extended it to sales under foreclosure of chattel mortgages. There seems to be nothing in the law to prevent the debtor from giving, selling, assigning, or mortgaging any or all of his goods and chattels; and when the transaction involves an adequate consideration, it would not be upheld as equitable, if the court were to deprive the creditor of the very security for which he gave his money. This branch of the motion is to strike out the whole answer, which is not granted.
The complainant is not entitled to costs.