#### O’BANNON *vs.*MYERS’ EXECUTORS.

n [BILL IN EQUITY" VOIS FORECLOSURE OF MORTGAGE.]

*of lost instrument.*— When a party comes into equity to obtain the benefit of an instrument properly belonging to the jurisdiction of a court of law, on the ground that it is lost, an affidavit of its loss must accompany the bill; but this rule does not apply to a bill for the foreclosure of a mortgage, given to secure the payment of a note which is alleged to be lost.

*mortgage.*— The recital of a note in a mortgage given to secure it, although it does not estop the mortgagor from denying the existence of the note as recited, is not sufficient to overcome his sworn denial of its existence in his an swer to a bill in chancery.

no chancery, in favor of the complainant, without a substantial correspondence between Ms allegations and proof. “

Appeal from the Chancery Court atWetumpka.

Heard before the Hon. James B. Clark.

The bill iu this case was filed by the executors of Claiborne Myers, deceased, against Joseph D. O’Bannon, for purpose of foreclosing a mortgage on a lot in the town Prattville, which purported to have been given to sethe payment of a note for $600, executed by said O’Bannon, on tbe 20th January, 1852, and payable to said Claiborne Myers, or bearer' on the 1st January, 1853. bill alleged, *“*that the note has been lost or destroyed, complainants bolieve, and has not been paid or other*552dischargedand was sworn to, by complainants, in the usual form. The defendant answered, oath, denyinghis indebtedness to the testator, and the existence of the note described in the mortgage; alleging the mortgage was given and intended to secure the testator against his liability, as surety for the defendant, two notes to one Spigner, which together amounted to about $500, and, by mistake of the attorney who wrote misdescribed the demand intended to be secured; and praying that the answer might stand as across bill for the reformation and satisfaction of the mortgage. On final hearing, on pleadings and proof, the chancellor rendered decree for the complainant, and dismissed the cross bill, the costs of the defendant; and his decree is now assigned as error.

S. Graham, for appellant.

Elmore & YaNcet, *contra.*

A. J. WALKER, C. J.

In this case it was not necessary that an affidavit of the loss of the note, secured by the mortgage, should have accompanied the bill of foreclosure. When a bill is filed to obtain the benefit of an instrument properly belonging to the jurisdiction of a court of law, upon the ground that it is lost, an affidavit of the loss of the instrument is required. The requisition of the affidavit is a caution required by the chancery court in permitting a transfer of jurisdiction from the court of common law to a court of equity. — 1 Mad. Ch. Pr. 27-28; 1 Dan. Ch. Pl. & Pr. 449; Story’s Eq. Pl. §478; Whitchurch v. Golding, 2 P. Wms. 541; Walmsley v. Child, 1 Vesey, sr. 341-345; Hove v. Harrison, 11 Ala. 499, 504; Owen v. Paul, 16 Ala. 130. The object of the bill in this case is the foreclosure of a mortgage, — a matter of which a court of law has no jurisdiction. The entertainment of the cause by a court of equity involves no change of jurisdiction, and the affidavit was not necessary'.

[2.] The complainants did not produce the note, to secure which the mortgage was given. The bill alleges the execution and loss of the note. The' defendant denies *553the execution of tbe note, in a sworn answer; there being no waiver of an affidavit of the truth of the answer. The complainant adduces no proof of the existence and contents of the note, save the recital in the .mortgage. Does the recital in the mortgage, which is under seal, establish the existence and contents of the note ? •

The modern doctrine unquestionably is, that the recital of an instrument in a deed is, as a general rule, primary and conclusive evidence of such instrument, against the grantor and his privies. This doctrine, although it is opposed by some of the English text-books, is too well established by judicial decisions to be now controverted. Carver v. Jackson, 4 Peters, 1-83; Crane v. Morris, 6 Peters, 598; Jackson v. Parkhurst, 9 Wendell, 209; Jackson v. Brooks, 8 Wendell, 426; Dunn v. Cornell, 3 Johns. Cas. 174; Jackson v. Livingston, 10 Johns. R. 384; Hoyatt v. Phifer, 4 Dev. Law, 273; Scott v. Douglass, 7 Ohio, 228 ; Wayman v. Taylor, 1 Dana, 527 ; 2 Smith’s Lead. Cases, top 609, 640, 687; 1 Phil, on Ev. C. & H’s notes, (4 ed.) 473, n. 130; 2 *ib.*574, n. 476; Graham v. Lockhart, 8 Ala. 9-24; Mead v. Steger, 5 P. 498; Brooks v. Maltbie, 4 S. &. P. 96. While the general rule isas above stated, there are exceptions.to it; and we think the recital of a note, in a mortgage given to secure its payment, ought to be excepted from the operation of the rule. The South Carolina court of appeals, having before it the .question, whether the recital in a mortgage deed of the bond secured by it dispensed with the production of the bond, held, in general terms, that the recital of an instrument in a deed was not primary evidence of the instrument. We cannot concur in that proposition. But the court, in fortifying its conclusion, gives some special reasons why the recital of a bond in a mortgage should not be primary evidence. Those reasons are, that the bond is assignable, and payments are usually endorsed upon it; and the production of the instrument should be required, to guard against a foreclosure in favor of a party who had transferred the bond, as well as.to prevent the deprivation to the defendant of the evidence of payment. — Chewning v. Proctor, 2 McCord’s Ch. R.

*55411. In a New York casé, the same reasoning as to the recital of a mortgage in another deed is advanced-in the following guarded language: “ Although the existence of an absolute deed or lease may be proved by a recital,, against the party making such recital, and all claiming under him ; yet, I incline to think, that a mortgage can not be so proved, because it is defeasible by payment of the mortgage-money; and if produced, it might probably show an acknowledgment of satisfaction on the back of it, that being the usual mode.”: — Jackson v. Davis, 18 Johns. R. 7. Aside from the consideration, that payments. are usually endorsed upon notes, the inconvenience and injustice -which might result from dispensing with the production of a note secured by the mortgage sought to be foreclosed, are so great, that we think the recital in the mortgage, as to the note, should constitute an exception to the general rule, and that the mortgagor should not be estopped from denying the existence of the note as recited in the mortgage. — Singleton v. Gayle, 8 P. 273; Bennett v. Taylor, 5 Cal. 502.

The recital in the mortgage is, however, a solemn admission of the existence and contents of the note. The affidavits -of the complainants make out a *frima-facie*case of loss. It may, therefore, be conceded, that in the absence of the advantage which the mortgagor has by virtue of his sworn answer, the failure to produce the note would be sufficiently explained, and the note sufficiently established. But the admission contained in the mortgage is not sufficient evidence to overcome the positive denial of the answer: it is not equivalent to the testimony of two witnesses, or of one with corroborating circumstances. The complainants have, therefore, fail'éd to establish the existence of the debt, as described in the mortgage and averred in the bill. . .

It is possible that the evidence may show, that the mortgagor was under a liability to the mortgagee at the date of the mortgage, to a less amount, and of different character from that mentioned in the recital in the mortgage and described i-n the bill. If, such be the case, the complainants were not entitled to a decree of foreclosure *555trader tbeir present bill. There can be no decree in chancery, without a substantial correspondence between the allegations and proof.

There was no-error in dismissing the cross bill.) The evidence of1 the witness Spigner does not authorize a reformation of the mortgage.

Decree reversed, and cause remanded.