Stickney v. Blair , 50 Barb. 341 ( 1867 )

By the Court,

Welles, J.

It seems to me the facts offered in evidence at the trial, by the defendant Blair, were clearly admissible, and, if proved, would have constituted a good defense. " The substance of them was that the plaintiff, who was the mortgagee, after the execution and recording of the mortgage, arid after the junior liens in favor of Blair had attached, well knowing the premises, and with intent to defraud him, (the defendant Blair,) and the creditors of the said Hoveys, moved the dwelling house, worth $800, from the mortgaged premises, which consisted of only an acre of land, and converted the same to his own use; thus diminishing the value of the mortgaged premises $1000, and leaving their value insufficient to pay the amount due ón the mortgage. If the plaintiff had gone into possession under the mortgage, there is no question in equity better settled than that he would have been liable to account for the rents and profits. The facts offered to be proved present quite as strong an equity in favor of this defendant as in the case supposed.. I have considered the criticisms upon the answer, and am not able to appreciate their force. The facts are not set forth with much logical order or skill; yet they are stated, and there can be no doubt of their furnishing full information to the plaintiff of the defense intended ; and if that be so, the object of the pleading is attained. Defects in pleading, as it respects the form and order of stating facts are to be settled on motion to the court, before the trial ; and such objections are not to be encouraged after the parties come to the circuit for trial.

[Monroe General Term, December 2, 1867.

I think the judgment should be reversed, and a new trial ordered, with costs to abide the event.

James C. Smith, Johnson, and Welles, Justices.]