Jones v. Burtis

Norval, J.

The action ivas to foreclose, a real estate mortgage. Plaintiff obtained a decree, and the mortgagors appeal therefrom, claiming that the findings are unsupported by the evidence. The petition contains, inter alia, the averment that, no proceedings at law’- have been had for the recovery of the debt secured by the mortgage, or any part thereof. The answer was a denial of each and every allegation in the petition contained. On the trial plaintiff introduced as evidence the note and mortgage in question, and rested. No other or further evidence was adduced in tbe case by either party, The question, *605 therefore, is presented whether it was incumbent on the plaintiff and appellee to establish on the trial the averment of the petition heretofore mentioned.

Section 850 of the Code of Civil Procedure is in the language following: “Upon filing a petition for the foreclosure or satisfaction of a mortgage, the complaint shall state therein whether any proceedings have been had at laAV for the recovery of the debt secured thereby, or any part thereof, and whether such debt, or any part thereof, has been collected and paid.” It is conceded by counsel ■for plaintiff, and there is no room to doubt that the statute so requires, that a petition to foreclose a mortgage on real estate must contain the averment called for by the section just quoted, and a petition Avhich omits such' allegation is demurrable. (Gregory v. Hartley, 6 Neb. 356 ; Meehan v. First Nat. Bank of Fairfield, 44 Neb. 213 ; Hargreaves v. Menken, 45 Neb. 668 ; Bing v. Horse, 51 Neb. 842 .) In the case last cited it Avas said: “Whether a proceeding at laAV has been had for the recovery of a mortgage debt, or any part thereof, and whether such a debt, or any part of it, has been paid, are essential facts which must be pleaded in order to invest the mortgagee of a real estate mortgage Avith the right to invoke a court of equity to foreclose such mortgage. The petition filed, then, for the foreclosure of a real estate mortgage must aver the facts required by section 850 of the Code, or the petition Avill not state facts sufficient to entitle the plaintiff to the relief he demands.” The object or purpose of the statute Avas to prevent the prosecution of an action at Iuav and a suit in equity at the same time to collect the mortgage debt, and the legislature has required that the plaintiff in a petition to foreclose a real estate mortgage shall, by suitable averments therein, advise the court whether an action at laAV is pending to enforce the collection of the same debt. This being a material and indispensable allegation in a petition of foreclosure, if the same is denied by the answer, no relief can be granted in the absence of proof of the truthfulness of *606 such averment. ' Ordinarily, a pleader is not required to prove a negative allegation, but this rule does not obtain where the facts are within his own knowledge. No one can be better advised than the mortgagee whether any action at law is pending to recover the mortgage debt. A suit, aided by attachment, might be instituted against a non-resident mortgagor to collect the debt without the latter’s knowledge. The plaintiff in this case, by reason of the general denial in the answer, was required to establish, by competent evidence, each material averment of the petition, including the one that, no action at law was pending to enforce the payment of the debt secured by the mortgage. In the absence of such proof the decree cannot stand.

Reversed.