
    Newby v. Forsyth.
    July Term, 1846,
    Lewisburg.
    (Absent Brooke, J.)
    i. Debt — Acknowledgment of Indebtedness in Deed,— An acknowledgment of indebtedness, in a deed between the parties, will sustain an action of debt,
    a. Same — Same—Pleading.—In declaring upon such an acknowledgment of indebtedness in a deed, it is not necessary to set out any more of the deed than that which contains the acknowledgment; ar d that only according to its legal effect.
    This was an action brought in the Superior Court of the county of Ohio, by James H. Forsyth against John Iy. Newby. The declaration charged “that whereas the said defendant heretofore, to wit: on the 8th day of December 1836, at said county, by his writing obligatory, sealed with his seal, and now to the Court here shewn, the date whereof is the day and year aforesaid, acknowledged himself to be indebted to said plaintiff in the said sum of 675 dollars, for so much money by said plaintiff theretofore paid for and on behalf of the said John Iy. Newby, and to be paid by the said Newby to the said Forsyth, in twelve months from the date of that writing obligatory.”
    The defendant appeared and craved oyer of the writing obligatory, and demurrer generally to the declaration. The paper set out on oyer was as follows:
    “Whereas we have this day bargained and sold to John Iy. Newby, lots No. 9, 17, 18 and 19, situate in the addition to the town of South Wheeling, laid out by us, for the sum of 3375 dollars, of which said sum the *said John Iy. Newby has paid 675 dollars, and has delivered to us four several bonds for the sum of 675 dol-ars each, payable respectively, on the 14th day of October 1836, 1837, 1838 and 1839, with legal interest thereon until payment: Now know ye, that in consideration thereof, for ourselves, our heirs, and assigns, we do hereby covenant with the said John Iy. Newby, his heirs and assigns, that upon the payment of the said sum of 2700 dollars to us, our heirs or assigns, at the times respectively appointed for the payment thereof as aforesaid, with interest thereon as aforesaid, we will execute and deliver to the said John Iy. Newby, his heirs or assigns, a good and sufficient deed for said lots No. 9, 17, 18 and 19. Witness our hands and seals this 14th day of October 1835.” This title bond was executed by M. W. Chaplin, James H. Forsyth, James Reid and Alexander Wilson, by their attorney in fact Marcus Wilson; and by Marcus Wilson.
    On the back of . this title bond was the following endorsement: “James-H. Forsyth having made, for and on behalf of John L. Newby, the first payment mentioned in the within title bond of 675 dollars to Marcus Wilson for himself, and as attorney as aforesaid, and the said Forsyth being willing to extend the time of payment to the said Newby the further time of twelve months from this date: Now to secure the said Forsyth the sum of 675 dollars as aforesaid, also the sum of 25 dollars paid to the said Newby by Marcus Wilson, making 700 dollars, I do hereby give and grant to the said James H. Forsyth, a lien on the lots 9, 17, 18 and 19, named in the within bond, as security for the payment to the said For-syth of the said 700 dollars aforesaid. Given under my hand and seal this 8th day of December 1836.
    John Iy. Newby, [Seal.]”
    The Court overruled the demurrer to the declaration, and both parties dispensing with a jury, gave the plaintiff *judgment for 675 dollars, with interest from the 8th of December 1837. From this judgment Newby 'applied to this Court for a supersedeas, which was awarded.
    The cause was argued in writing by Deigh, for the appellant, and Price, for the appellee.
    Leigh. I. The first objection to the judgment is, that the writing obligatory set out on 03er is wholly variant from that set out in the declaration.
    The declaration counts on, and makes profert of a writing obligatory, whereby Newby “acknowledged himself indebted to Forsyth, in the sum of 675 dollars, for so much money by Forsyth theretofore paid for and on behalf of Newby, and to be paid by the said Newby to the said Forsyth, in twelve months from the date of the said writing obligatory. ”
    The deed set out on oyer is endorsed on a title bond given by M. W. Chaplin and others, reciting that Newby had purchased four lots, numbers 9, 17, 18 and 19, in South Wheeling, of which sum he had paid 675 dollars, and given his four bonds to the vendors for 675 dollars each, payable, with legal interest, on the 14th October 1836-’37-’38 and ’39; in consideration of which, the vendors bound themselves to convey the premises to him on payment of the purchase money. On this paper is endorsed the writing obligatory on which the suit is brought, dated the 8th December 1836, and it imports, that “Forsyth having made, for and on behalf of Newby, the first payment mentioned in the title bond, of 675 dollars to M. Wilson for himself and as attorney in fact, and the said Forsyth being willing to extend the time of payment for twelve months from the date; now, to secure the said Forsyth the sum of 675 dollars as aforesaid, also the sum of 25 dollars paid to the said Newby by Marcus Wilson, making 700 dollars;” Newby “gave and granted to the said Forsyth a lien on the lots 9, 17, 18 and 19, named in the title bond, as security *for the payment to the said Forsyth of the 700 dollars aforesaid.” Now, it is obvious, that the only part of this deed, which can by possibility be regarded as an acknowledgment of indebtedness, and the onty part of it set out as such acknowledgment in the declaration, is the recital in the instrument; and the recital states a debt of 700 dollars, instead of a debt of 675 dollars claimed in the declaration. It may be said, that this is to the prejudice of the plaintiff below, and the counsel for the appellant admits that it is so; but, still there is a variance in respect to the sum demanded, which is fatal. Eann v. Green, 1 Cowp. 474; Bristow v. Wright, 2 Doug. 664, and the note at the end of the last case. Bennet v. Boyd, 6 Beigh 316.
    But there is a more substantial variance in this case. The declaration separates the recital of the instrument from the positive contract which it contains, and treats the recital, not the positive contract, as the obligation. The purpose of the contract was, that Newby thereby gave a mortgage, or a covenant to give a mortgage of real estate, to secure the debt recited to have been incurred by Newbj-, not to give a bond for the debt; but the declaration treats this paper as Newby’s bond for the money which Forsyth had paid for him. But it is not a bond for the debt — it contains no covenant, no promise to pay the debt, and no formal acknowledgment of the debt: the debt remained a simple contract, notwithstanding this instrument. Ancaster v. Mayer, 1 Bro. C. E. 454; Powell’s ex’or v. White, 11 Beigh 309. The declaration disregards the positive contract imported by the instrument, and takes no notice of it whatever, but counts on the recital as an obligation. This is a fatal variance between the declaration and the instrument declared on, and set out on oyer.
    In this case, the declaration made profert of the writing obligatory; Newby craved oyer of it, and it was set out at large, and then he demurred generally. And this *was the proper, and indeed the only mode, by which advantage could be taken of the variance. 1 Eob. Pr. 159; Macon v. Crump, 1 Call 500; Armstrong v. Armstrong, 1 Beigh 491; Bennet’s ex’or v. Boyd, 6 Beigh 316.
    II. Supposing the objection to the variance out of the way, debt does not lie on this instrument, which is either a mortgage of real property to secure a debt, or a covenant to give such mortgage. If it was a mortgage, the remedy was a bill in equity to foreclose the mortgage. If it was a covenant to mortgage property to secure the debt, an action of covenant lay on the instrument, but no action of debt lay.
    III. When Forsyth paid the 675 dollars for Newby, Newby thereby became indebted to him by simple contract for the money; and I have already shewn that the mere recital of such indebtedness in a deed binding Newby to give a mortgage of real estate, and purporting to mortgage real estate, to secure payment of the debt, did not change.the nature of the simple contract debt, and make it a specialty debt, but that it remained still a simple contract debt, and was liable to be barred as such by the statute of limitations, and to all the other consequences of its simple contract character. But in the manner in which the declaration treats this instrument, by separating the recital from the positive contract, and regarding the recital as a deed acknowledging a debt, the instrument is perverted from its object; that which was intended to be its only object, is wholly concealed from view, and it is made to be a simple obligation to pay money, which the parties never intended it to be. A party, in pleading a deed, may represent it according to its legal effect, but he cannot plead it as having an effect directly contrary to its intent.
    Price. The only question made in this case is, that the Court erred in overruling the demurrer to the declaration after the bond had been set out upon oyer. And *three propositions are urged in support of this point. First, If the suit could be maintained at all, it ought to have been brought for 700 dollars instead of 675 dollars; and that there was a variance between the bond and declaration, in not describing it as a bond for that amount. This, however, appears to me to be a misapprehension. The sum of 675 dollars was all that was due to Mr. Forsyth; the additional sum of 25 dollars was due to Marcus Wilson; the property was therefore mortgaged to Mr. Forsyth to secure himself the sum of 675 dollars, and Mr. Wilson the sum of 25 dollars due him. A suit for 700 dollars could not have been maintained in the name of Forsyth. This is the obvious import of the instrument. Secondly. Was the obligation otherwise misdescribed? The plaintiff need not set out the whole instrument in his declaration. He should only set out the legal effect of it: and this may be done without using one word used in the deed. 1 Chitty’s PI. 353-4; Holman v. Borough, 2 Salk. E. 658; Bord Mansfield said, in Bristow v. Wright, 2 Doug. E. 667, that ‘in an action founded on a deed, the plaintiff need not state more than that part which is necessary to entitle him to recover.” 1 Chitty p. 299, 302, 303. In an action of debt upon an award, it has been often decided that the plaintiff need not shew any more of the award than makes for him. Hodsden v. Harridge, 2 Saund. R. 62, note 5; M’Kinstry v. Solomons, 2 John. R. 57; Doolittle v. Malcom, 8 Heigh 608. In the case of Rann v. Green, 2 Cowp. R. 474, cited by Mr. Heigh, the declaration misdescribed the statute upon which the action was founded; and Hord Mansfield said, “the Court will always incline to lean against niceties in matters of variance, but where it is the description of a statute or record it is fatal.’’ I think there was no material variance.
    Can debt be sustained upon the instrument? The rule, as I understand it, is that any acknowledgment of a debt *in a written instrument is sufficient to maintain the action. As ‘ ‘if a man by deed acknowledge that he hath so much money of J. S.’s, due to him, in his hands, though here is no contract of borrowing between them, yet J. S. may have an action of debt against him.” 2 Bac. Abr. 279, Debt A, note a, citing 11 H. VI., 39; Com. Dig. Debt A, 4; 7 Vin. Abr. Debt K, pi. 12, p. 343. The case of Elder v. Rouse, 15 Wend. R. 218, is very similar to this, and the general doctrine is there laid down and commented on.
    It may not be amiss to examine the instrument a little, which was set out upon oyer. I understand it to say that Newby acknowledges that Forsyth had paid for him 675 dollars (and this appears to me to be an acknowledgment of a debt). ‘ Forsyth is willing to extend the time of payment twelve months.” (It is plain then, that the money was to be repaid.) “Now, to secure Forsj-th, I give to him a lien on the lots as security for the payment, ” &c. The essence of the contract was that Newbj' owed Forsyth 675 dollars for money paid for him: and to secure the repayment he gave Forsyth a mortgage upon the lots. Is there then any essential difference between this case and the case cited of Elder v. Rouse, 15 Wend. R. 218? And is it not almost exactly similar to the case of Baker v. Fawcett, commented on by Judge Tucker, in 11 Heigh 318, citing Dj'er 22 b? Baker v. Fawcett was so plain that the Court would not allow an appeal.
    The case of Powell v.. White, 11 Heigh 309, cited by Mr. Heigh, is not a case in point. There the deed was given to secure an endorser against a contingent liability. There was no acknowledgment of a debt, for there was no debt, and there might never be any.
    
      
      See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
   By the Court.

Affirm the judgment.  