Austin v. Howe

The opinion of the court was delivered by Hebárd, J.

This was an action upon a promissory note, and the defence is, that the note, with others, is secured by mortgage; and that a bill of foreclosure has been brought upon that mortgage, and that the bill was taken as confessed, and was referred to a master, who, on the 20th of June, 1843, made report of the sum due, which report was ordered to be filed in the court of chancery, together with the docket minutes of the clerk, in relation to the time when the several sums were to be paid. The defence goes upon the ground, that a decree has been made in the case, fixing upon the time when the different sums should be paid, and that the decree has not been complied with, and that the premises have become vested in the orator in that bill.

We, in the first place, think that there was no such evidence of any decree offered, as the court would have been justified in regarding. If there was any decree, it must be proved in the proper way. The decree itself, as drawn up and signed, or a copy of the record, if it have been enrolled, would be the only legitimate evidence of the decree. We therefore think, clearly,; that, as the premises have not been enjoyed by the orator, and no possession had been taken, or attempted to be taken, by him, the defence that was offered could not avail the defendant.

*656 It would seem to be unnecessary to take much time in disposing of this case, after having said thus much; fot we think that the law upon this point is fully and correctly set forth in the case of Lovell v. Leland, 3 Vt. 581; and that case falls short of sustaining the defence, that was attempted to be made in this case,.

Judgment affirmed.