Blankman v. Vallejo

Citations

• 15 Cal. 638

Syllabus

<p>Ik a foreclosure suit on bond and mortgage, the fact that the bond offered in proof on the trial does not answer the description of the bond as recited in the mortgage, is matter of identity merely, and not properly matter of variance—the bond offered answering to the description given in the complaint.</p> <p>Where a mortgage is given to secure a debt, it is not of the essence of the deed whether the debt be evidenced by one form of contract or another. All that a Court of Equity desires to know in such cases is, what is the debt really intended to be secured; and whether it be called a note or bond is immaterial, so that the debt itself be identified as that for which the mortgage is given.</p> <p>In equity the general denials made by traversing literally and conjunctively the statements of a sworn bill, are not legitimate for the purpose of putting in issue specific allegations; for, in this way, a party may deny the entire charges in form as stated against him, in consistency with admitting the truth of the specific charge or even the substantial fact.</p> <p>The rules of pleading, both under the old equity system, and under our present system, are intended to prevent evasion, and to require a denial of every specific averment in a sworn bill, in substance and in spirit, and not merely a denial of its literal truth; and whenever the defendant fails to make such denial, he admits the averment.</p> <p>In this case, as the bond in the complaint answers to the description of the bond offered in evidence, and as the complaint avers that the mortgage was given to secure this bond—the denials in the answer being literal and conjunctive— the execution of the bond and mortgage was held to be admitted by the answer, as also that the mortgage was given to secure the debt evidenced by the bond. Although an answer denies the delivery of a bond and mortgage, still their possession by plaintiff is evidence of .delivery.</p> <p>An answer, under our statute, is not proof for