#### ISAAC W. HUGHES *against*R. W. BLACKWELL AND OTHERS.

Where a plaintiff in his bill makes direct charges, and calls upon the defendant by special interrogatories to make discoveries as to those charges, the answer, directly responsive to such interrogatories, becomes evidence for the defendant-, as well as against him, notwithstanding that a replication to the answer had been put in.

The payment of interest upon a mortgage debt within ten years before the filing of a bill to foreclose, repels the presumption of payment or abandonment arising from the length of time.

*74Cause removed from the Court of Equity of Craven county.

On 23d of August, 1844, John Blackwell conveyed byway of mortgage to the defendants, R. M. Blackwell Zophar Mills and John D. Abrams, the property which is the subject of this controversy, lying in the town of Newbern, to secure a note of that date for $6000 made by the said John Blackwell and one John M. Oliver, and on the same day the said John Blackwell executed another mortgage deed for the same property, to secure a debt of $1943.34, due on an account. On the 1st of July, 1845, the said John Blackwell executed a mortgage deed to R. M. Blackwell for the same property to secure a note payable to him, for $3500, bearing even date with the said mortgage deed, and due two years after date, with interest from the date. In September, 185C, the said John Blackwell executed a deed of trust to James C. Justice, as trustee, to secure to the plaintiffs a large amount of debts due them, in which said deed are embraced the premises in question. In the Spring of the year 1857, a bill of foreclosure was filed by the said R. M. Blackwell and Zophar Mills and John D. Abrams, and the said R. M. Blackwell, to have the said debts paid and satisfied bjr and through the means of the said mortgage, and pending the proceedings thereon, the bill in this case was filed by the plaintiffs to set aside the mortgage deeds upon several grounds, the one of which that has come under the consideration of this Court, more particularly, is, that from the length of time elapsing between the day the said notes be-became due, and the time of bringing the bill to foreclose, the presumption of payment, satisfaction or abandonment arose. The plaintiffs anticipating that the defendants would set up the payment of a part of the principal or interest within the ten years, in order to repel the presumption otherwise arising upon the effiux of that period, among divers other special interrogatories, asks the defendants as follows: “Did John Blackwell pay any money for interest on the said several notes and accounts. If so, when? How much? Who was present? Where was the payment made? How made? Were they endorsed as credits? If so, in whose hand-writ*75ing? By whose authority and in whose presence?” To these interrogatories, the defendants, E. M. Blackwell, Mills and Abrams, answer as follows: “And the said defendants, Bo-bert M. Blackwell, Zophar Mills and John D. Abrams, further answering the said interrogatories as to the payment of interest on the said several notes and accounts, say : Subsequently to the receiving of the said mortgage deeds they had large dealings with said John Blackwell and John M. Oliver, consisting of sales of merchandise in the city of New York, belonging to the said John Blackwell and said Oliver, and half yearly, on the first days of July and January in each year, these defendants rendered accounts current, in which were regularly charged the interest on said several notes and accounts, and said interest was thus regularly paid up to the 31st day of December, 1819. And they further answer, that the said interest, so paid, was not regularly endorsed as credit on said notes and account, but, according to their best recollection, endorsements were made on said notes, showing that the interest had been paid previous to a transfer of them to James M. Blackwell, as trustee, &c.; but said notes not now being in their possession, or accessible by those defendants, they cannot answer positively as to that matter; nor do they remember in whose hand-writing said endorsements are, but they believe they were made by one of these defendants, (probably by E. M. Blackwell,) or by their authority.”

On the production of the notes in evidence, the following endorsement appears on that for $6000, to wit:

“Deceived the interest on the within note up to 20th of September, 1854. E. M. BlacKwell & Go.”

And on that for $3500, the following, to wit:

“Or. the within note by seven hundred and thirty-five dollars, received through John Blackwell *&*Go., being three years’ interest on within note up to Juty 1st, 1848, this 20th April, 1848. E. M. Blackwell.”

The main question was, whether the facts disclosed in the answer being thus specifically called out by interrogatories, *76did not become evidence in the canse, notwitstanding the plaintiffs replication.

*J. W. Bryan*and *Haughton,*for the plaintiffs.

*Howie, Green, McRae*and *H. G. Haywood,*for the defendants.

Battle, J.

The debts alledged to be due from the defendant, John Blackwell, to the defendants, E. M. Blackwell, Mills and Abrams, for the security of which, the mortgages, which the plaintiffs seek to set aside, were given, are clearly proved to be fair and *Iona fide*debts, founded upon sufficient and valuable considerations. The plaintiffs virtually admit the truth of this, but they alledge that the debts have been paid and the mortgages satisfied and abandoned. In support of their allegations, they rely, mainly, upon the clearly established fact, that after the mortgages in question were executed, John Blackwell, the mortgagor, remained in possession of the mortgaged premises for more than ten years, and, as the plaintiffs state, without the payment of any part of the principal or interest of the debts to the mortgagees, or either of them, and without the acknowledgement of the existence of the debts within that time. The plaintiffs insist, therefore, upon the presumption of law, that the debts have been paid, and, consequently, that the mortgages themselves have been satisfied and abandoned. If all these allegations be true, the legal consequence contended for by the plaintiffs, is clearly established by the authorities cited by their counsel. See, among others, the cases *of-Lyerly*v. *Wheeler,*3 Ired. Eq. 599, and *Roberts*v. *Welch,*8 Ired. Eq. 287. But the defendants deny the statement that no part of the interest, due on these debts, has been paid, and, on the contrary, aver that it was regularly paid every year, until the year, 1848. They state the manner in which the payments were made, and produce the bonds mentioned in the pleadings, of $6000 and $3500, with an endorsement on each in the hand-writing of E. M. Blackwell, of a certain amount of interest paid thereon. The *77account for $1943.34, which is one of the debts mentioned in, and secured by, one of the mortgage deeds is also produced ; upon which there is no endorsement of the payment of interest, but the defendants aver positively that the interest was paid on that also, as well as on the bonds, up to the time mentioned above. If these allegations of the defendants be true, then the same authorities to which we have already referred, show that the presumption for which the plaintiffs contend is rebutted. The question then arises: are they sufficiently proved, so that the Court can declare them to be true ? The defendants contend that they are fully and sufficiently proved by their direct and positive answer to special interrogatories put to them by the plaintiffs upon those very points; and that the plaintiffs have not shown any thing to repel the force of the evidence thus furnished by the answer. In support of this position, the defendants rely upon 2 Stor. Eq., sec. 1528; 2 Fonb. Eq. B. 6 ch. 2, sec. 3, note g; *Pember*v. *Mathers, 1*Bro. Ch. Cases 52, and *Chaffin*v. Chaffin, 2 Dev. and Bat. Eq. 255. The plaintiffs deny the application of the rule to the present case, because, they say, that the allegation of the defendants with -regard to the payment of interest on the debts, was denied by the replication, put in to the answer; that such allegation was a matter of defense set up by the defendants which they were bound to prove by testimony, and that their answer, being thus denied by the replication, was not evidence for them. For this, is cited *Lyerly*v. Wheeler, 3 Ired. Eq. 170 and 599, and it is also supported by *Gillis v.*Martin, 2 Dev. Eq. 470. The plaintiff’s position would have been completely sustained if they had not made statements in their bill with regard to the payment of interest on the debts, and called upon the defendants by special interrogatories to answer them. They thereby made the defendants witnesses as to that fact, and the answer was thus made evidence for the defendants, as well as against them. This is shown by the case of *Lylerly*v. Wheeler, cited and relied upon by the plaintiffs, themselves. In that case, at page 601, the Court say “ An answer after replication is not evidence for the defendant, ex*78cept as it is made so by discoveries called for in the bill, and which are x’esponsive to direct charges or special interrogatories.” The other authorities which have been already referred to as being relied upon by the defendants, are to the same effect. Had the plaintiffs made no charges in their bill about the non-payment of interest, and asked no questions upon the subject, but simply stated the time when the bonds were given and the mortgages executed, and then relied upon the lapse of time, as affording a presumption of the payment of the debts, and a satisfaction and abandonment of the mortgages, the defendants would have been compelled to allege such payment in their answer as a fact, going to repel the presumption, and and then, upon a replication being put in, their answer would not have been evidence for them, and they must have failed in their defense, unless they could have produced proofs independent of their answer. These observations do not apply to the debt and mortgage for $3500, because the bond was payable two years after its date, in 1845, which brought it within the ten years before the bill for foreclosure, mentioned in the pleadings, was filed. As the only object of the bill was to set aside the mortgages, and as no account is prayed from the defendant Justice, the trustee, it has failed of its purpose, and must be dismissed with costs.

Pee CukiaM, Pill dismissed.