Seebold v. Lockner

Bartol, C. J., delivered the opinion of the Court. The bill of complaint in this case, was filed by the appel-lees to redeem a mortgage, executed by them to the appellant-on the 13th day of October, 1857, conveying a lot of ground in the city of Baltimore. The mortgage was made under the provisions of the Act of 1833, ch. 181, and. its supplements. The bill charges that the mortgagee had been in possession • of the property,'receiving the rents thereof, whereby the mortgage debt had been paid, and prays an account thereof and the re-possession of the property.

The defendant pleaded in defence to the bill, the pendency in the same Court of a bill filed by him against these complainants for foreclosure of the same mortgage, that the complainants appeared in said cause and made defence thereto, and set up and alleged the same matters and things in de-fence thereto, as are set forth in their bill of complaint in this cause, &c. To this plea the complainants filed a general replication. Whereupon the Circuit Court passed a decree referring the cause to the auditor, with directions to take proof and state an account as prayed, and awarding costs to the complainants. The appeal is from that decree.

The decree states, that “ it appeared to the Court upon the inspection of its records, that there is no such record as is in the defendant’s plea pleaded.” Supposing the Court to have decided correctly upon the issue presented by the pleadings, there was error in passing ¹³⁷ the decree. According to the rules of equity pleading, and the established practice in this State, the effect of filing the general replication was to admit the legal sufficiency of the plea, and to raise an issue of the truth of the matters therein alleged. If overruled for want of proof, the defendant upon payment of the fine of ten dollars, imposed by the Code, Art. 16, sec. 102, ought to have been allowed to answer the bill. Bank vs. Dugan, 2 Bland, 257 ; Worthington vs. Lee, 2 Bland, 685 ; Chase vs. McDonald & Ridgely, 7 H. & J., 197, 198 ; Carroll vs. Waring, 3 G. & J., 491 ; Danels vs. Taggart, 1 G. & J., 312 ; Cooper’s Eq.

Pleadings, 328; Hughes vs. Blake, 6 Wheat., 472 ; Rhode Island vs. Massachusetts, 14 Peters, 257 . If the case came before us on the original record, the appellant would be concluded by the judgment of the Court below upon the issue presented by the plea, and nothing would remain for this Court to do, except to reverse the decree for the error above stated, and to remand the cause for further proceedings, in accordance with the established practice. But the record has been amended by an agreement of the solicitors filed in this Court, whereby it is admitted: “ That the defendant herein, in the month of March, 1860, filed in the Circuit Court for Baltimore city, a