
    Van Dyke vs. Van Dyke and others.
    1. When a cause is set down for bearing on bill, answer and replication, the answer is to he taken as true in all matters responsive to tire bill, but is no evidence of matters set up by way of confession and avoidance. Such matter, to be available to the defendant, must be proved by testimony.
    
      2. An objection to tlio competency of tlie complainant to maintain his •suit, hv reason of his failure to join with him an alleged necessary party, cannot avail a defendant, who has proceeded to hearing upon hill and answer, without making proof of the interest of such party in the subject mailer of the suit.
    On final hearing, on bill, answer and replication.
    
      31 J’ -L. Voorhees, for complainant.
    
      3L\ C L. Corbin, for defendant II. L, r L Van Dyke.
   The Chancellor.

The bill is filed to foreclose two mortgages upon land ; one given to the complainant, and the other to Ann W. Van Dyke, who subsequently married O. S. Belden, and after-wards, with her husband, duly assigned it to C. Lippincott and D. P. Darrell, by whom it was assigned to the complainant. The defendant, Ilenry L. XL Van Dyke, has answered. The bill has been taken as confessed as against all the other defendants. The complainant has filed a replication to the answer. Yo testimony lias been taken in the cause. The answer admits the making of the mortgages, and the assignments, but “charges and insists,” that the assignment from Mrs. Belden and her husband, which is set out in the bill as an absolute assignment, was not, in fact, absolute, but was a mere hypothecation to secure a loan or debt due from Mrs. Belden, the precise amount whereof is unknown to the answering defendant, but which it charges,” amounts to less than one-half of the amount of the mortgage, and that the mortgage is, as to the excess, held in trust by the complainant for her. The answer also insists, that the complainant cannot, therefore, maintain a suit to foreclose that mortgage in his own name alone, but must join Mrs. Belden as a complainant with him. When a cause is set ■down for hearing on bill, answer and replication, the answer is to be taken as true in all matters responsive to the bill, but is no evidence of matters 'set up by way of confession and avoidance. Such matter, to be available to the defendant, must be proved by testimony. Roberts v. Birgess, 5 C. E. Green 139. There is, therefore, nothing to sustain the allegation of the answer as to the interest of Mrs. Belden in the mortgage assigned by her. The objection, based on the alleged necessity of her presence as a complainant in the cause, cannot, therefore, be sustained. There will be a decree for the complainant, accordingly.  