Ashworth v. Dark , 20 Tex. 825 ( 1858 )

Wheeler, J.

The object of amending the answer was to waive the tort, and rely upon the implied contract. As amended, the answer amounts to this: that the plaintiff had taken and appropriated the identical property of the defendant, upon which he had taken the mortgage to secure the payment of the note sued on, of value more than sufficient to satisfy the debt. Can it be doubted that this was an answer to the action to foreclose the mortgage upon this property ? We think not. If true, it was an answer to the entire action ; for if the mortgage was thus satisfied, there was no longer a subsisting debt. And the Court having acquired cognizance of the defendant’s demand, would retain it for the purpose of final disposition, and would award a recovery over against the plaintiff, if the defendant showed himself entitled to it. We are therefore of opinion that the Court erred in sustaining exceptions to the answer; for which the judgment is reversed, and the cause remanded.

Reversed and remanded.