
    Woods v. Almand & Moon.
    August 5, 1895.
    Foreclosure of mortgage. Before Judge Hunt. Butts superior court. August term, 1894.
    Almand & Moon brought their petition against Woods, alleging that on February 9, 1892, he executed and delivered to them a mortgage note which became due on October 1, 1892, for $492.21 principal; that defendant fails and refuses to pay the principal and interest due thereon, though often so requested; that to secure said principal and interest and other items that might become due and owing to them, said Woods mortgaged to plaintiffs “the following described property: one hundred acres of land being and lying in the 616 dist., bound as follows: north Fincher & Wilson, south by John Thompson, east by Lindsy Woods, west by J. W. Welch; and other personal property in said mortgage named; that the real estate so mortgaged lies and is situate in the county and State aforesaid; that the personal property is of little or no value,” etc. Plaintiffs prayed for rule msi to foreclose the mortgage. In defendant’s answer to the rule msi, he alleged, that his “obligation as to said mortgage has long since been entirely discharged; that said mortgage was given as security only, and for the purpose of trading on an open account;” that he “has paid plaintiff in full of all indebtedness whatever; that he owns no land as described in the petition, nor did he dictate any such description;” and “that he is not indebted to plaintiff in any manner or form whatever.”- This plea was sworn to by defendant. It was stricken on demurrer, because it did not clearly and distinctly set out any matter of defence. Defendant excepted, alleging that this decision was contrary to law; that he or his attorney never had notice of said demurrer (which was heard when reached on call of docket); and that said demurrer was made on the day next to the last day of court, and passed on the same day.
   Simmons, C. J.

Although it was probably intended by the plea to allege that the mortgage sought to be foreclosed was given only as collateral security for the payment of an open account which the defendant contemplated contracting with the plaintiffs at the time the mortgage was executed, and that this account was afterwards fully paid off and discharged, the plea in fact falls too far short of distinctly and plainly making these allegations to render it good against a demurrer alleging that it did not clearly and distinctly set out any matter of defense. ■ Judgment affirmed.

Ray & Ray and Harrison & Peeples, for plaintiff in error. "t. A. Wright, contra.  