
    Finsley Chewning and Wife v. John Proctor, Administrator of William Baker, Deceased.
    Upon the foreclosure of a mortgage given to secure the payment of a bond, the bond must be produced, (if not shewn to be lost or destroyed.) as the highest evidence of the debt. The recital in the mortgage is not suflicient. Giving a bond and mortgage furnishes a presumption of the liquidation of all accounts before their date between the parties. The court does not listen to appeals on matters of fact from the chancellor. Case sent back for new proof.
    This case was heard upon the defendant’s exceptions to the report of the commissioner.
    The bill stated that Huldah Goodman, on the 1st of January, 1818, by her written obligation bearing date the day and year aforesaid, stood bound to one William Baker, or his certain attorney, in the sum of 8266 13, payable on or before the first of January, 1819, with interest from the date. That on the same day, to secure the payment of the said writing obligatory, she executed to the said William Baker a mortgage of the land on which she lived, containing 162½ acres, conditioned to be void on the payment of the money, according to the condition of the obligation aforesaid. That in 1823 the said Huldah intermarried with the defendant Finsley Chewning, and that they had not paid the sum of money according to the condition of the bond, and that William Baker died, and plaintiff administered on his estate. *The bill prayed, that defendants might answer all the allegations contained therein, and that the mortgage might be foreclosed.
    The defendants put in their joint and several answers, by which the defendant, Huldah, admitted, that being indebted to a certain Thomas Goodman, in the sum of 8129 50, with interest from the 4th of June, 1816, the payment of which was secured to the said Thomas by a mortgage on her land, she agreed with William Baker, if he would pay to the said Thomas Goodman the amount of his debt and take up his mortgage on the land, she would secure him, the said William Baker, for the money be might so advance, by a mortgage on the land ; which on. the 27th of December, 1817, William Baker paid, amounting to §142 68. On the 1st of January, 1818, she executed a mortgage intended to secure the payment of the money advanced to Thomas Goodman; hut stated unequivocally that if the obligation on which the mortgage to Baker was founded was for any other or greater sum than the amount paid by him to Thomas Goodman of §142 68, that it was a fraud and imposition on her and ought not to be enforced.
    They admitted their intermarriage, the death of Baker, and administration on his estate by the plaintiff.
    The defendant, Huldah, further answering, stated that William Baker, from the beginning of the year 1816, to his death, in June, 1823, lived with the defendant on her plantation, working for a share in the crop; during all which time he received the whole proceeds of the crops raised on the plantation, which, after allowing all credits and paying off the mortgage, would leave a balance in favor of the defendants; which they hoped to establish by proper proofs and vouchers.
    On hearing the case upon the bill and answer, the matters of account were referred to the commissioner; and *upon the coming in of his report, the defendants put in the following exceptions:
    First. That the commissioner allowed to complainant §266 13, as due upon the debt secured by the mortgage, when the complainant produced no evidence of the debt, but relied solely on the admissions made in the answer, wdiich stated the debt to be §142 68.
    Second. That the commissioner did not allow7 the defendants the crop of cotton sold by William Pinchback in 1817, and paid over by him to Wblliam Baker, amounting to §210 39f.
    Third. That he did not allow defendants the price of cotton sold by Thomas Hill in 1822, as charged in exhibit A.
    June, 1826. On hearing the above exceptions, his honor Chancellor DeSaussure overruled them; from which decree the defendants appealed, and moved the court of appeals to reverse his decree on each exception.
    January 29, 1827.
    Dunlap, for the appellant.
    The production of the mortgage alone is not sufficient evidence of the debt. It only recites the single bill. The mortgage was only secondary evidence of the single bill, which should have been produced, being the highest evidence of the debt; and if the answmr is taken, the whole of the answer must be given in evidence. The non-production of the single bill was not an oversight, as appeared on reference before the commissioner. No copy7 of the single bill was exhibited, though the copy7 of the mortgage was. The mortgage was payable according to the condition of the single bill. There is no doubt the amount recited in the mortgage is the penalty, and not the sum actually7 due. The answer, in its statement of the amounts due, gives exactly7 one half of that set forth in the mortgage, and which doubtless was the true amount due.
    *Caldwlll, contra.
    The commissioner refused to take into account matters previous to the date of the mortgage. The single bill was not produced, because it was not in the power of the complainants; as upon the death of Baker, at Goodman’s house, the single bill fell into the hands of the defendant, and nothing remained but the mortgage.
   Curia, per

Johnson, J.

The question, propounded as the first ground of this motion is, whether the recital of the bond in the mortgage is of itself sufficient evidence of the debt, without the production of the bond ?

Generally, the party making a recital is concluded by it, and he is estopped from saying that the fact recited is not true ; but when the recital points to higher and better evidence of the fact, which is in the, power of the party, it falls within the universal rule, that the best evidence which the nature of the case admits of must be produced. It is necessary to guard against the effect of a misreeital; and may be compared to the common case of offering a copy in evidence. When the original is in existence, a copy is excluded on account of the danger of error; and the same reason applies, with equal or greater force, to a recital.

There are other considerations which apply more peculiarly to the present case. This was a bond for the payment of money, assignable under the act of the legislature, and the production of it is rendered necessary to guard against frauds that might arise out of a transfer; and it is well known, too, that papers of this description serve as almost the only record of receipts and payments; and the circumstance of keeping it out of view, without accounting for its destruction or loss, gives rise to a suspicion that some unfairness was intended.

Again, the case in itself furnishes, perhaps, as strong an illustration of the necessity of requiring that the bond *itself should be duced, as any that can be readily conceived. The mortgage cites, that, “whereas Huldah Goodman, by her written obligation bearing date, &c., stands bound to the said William Baker in the penal sum of §206 13, the condition of the said sum of 8266 13, payable on or before the first day of January, 1819, with interest from the date, &c.” Now it is apparent, that the condition has been misrecited, or it involves the incongruity of a penal bond, conditioned to pay the penalty, which would of itself be conclusive as to the case.

The discount claimed for the sales of the crop of 1817, was properly rejected. That transaction proceeded the execution of the bond and mortgage, which in themselves furnish a presumption of the liquidation of all accounts between the parties; and although this, as a mere legal inference, might be repelled perhaps by very slight circumstances, none exist in this case; on the contrary, the length of time which has elapsed without any demand for the discount having been made, confirms the presumption.

The remaining ground involves a matter of fact only, and the court see no reason to dissent from the conclusion of the commissioner and the chancellor in relation to it.

The case is therefore referred back to the commissioner, to give the complainant an opportunity of producing the bond, or accounting for its loss or destruction, and it is ordered and decreed that he report thereon, in conformity with this opinion.

Decree affirmed.  