Oregon Railway Co. v. Oregon Railway and Nav. Co.. 109 Oregon Railway and Nav. Co., Oregon Railway Co. v. 109 Oregon Railway and Nav. Co., Wells, Fargo & Co. v.. 519 Otey, United States v.. 416 Salem C. F. M. Co., First National Bank of Salem v.. 485 Salem C. F. M. Co., First National Bank of Salem v.. 496 DECISIONS OF THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES, FOR THE NINTH CIRCUIT. L. H. ALLEN v. ELIZA O'DONALD ET AL. CIRCUIT COURT, DISTRICT OF Oregon. JULY 19, 1886. 1. PROPERTY MORTGAGED AS SURETY FOR A DEBT.-A husband and wife joined in a mortgage including certain property belonging to each to secure the payment of the husband's debt, and after the debt was due, the husband, with the assent of creditors, conveyed his property to a third person in trust, to manage the same, and, with the consent of the debtor, to sell and dispose of the same and apply the proceeds on the debt; in pursuance of which authority said trustee sold a portion of said property and applied the proceeds accordingly, and thereupon the creditors released their mortgage on the same: Held, (1) The property of the wife was not discharged from liability for the remainder of the debt by such release, unless she was pecuniarily injured thereby; (2) A provision in such mortgage that in case of default in the payment of the debt the mortgage may be foreclosed according to law is mere surplusage, and did not prevent the debtor and creditors from making other arrangements for the disposition of his property in satisfaction of the debt, and the release of the same from the mortgage, without affecting the liability of the wife's property, unless it appeared that the property was sacrificed or disposed of at less than its market value, to her injury; (3) The burden of proof is on the creditor, to show that such sale was fair and the proceed- j stly applied, or that the property of the wife was not thereby wrong, made to bear any more than its proportion of the debt; (4) The voluntary forbearance of the creditors to sue the debtor while this amicable arrangement between him and them for the disposition of his property was being carried out did not amount to an extension of time to the debtor, Opinion of the Court-Deady, J. [July, which would discharge the property of the wife from the mortgage, for 2. LIMITATION IN EQUITY.-The rule of limitation in a suit in equity on a note and mortgage to recover the contents of the former and enforce the lien of the latter therefor, is the same as in action thereon at law. 3. NEGOTIABLE PAPER.-By the law merchant, a promissory note payable to order or bearer is negotiable as long as it exists unpaid, and the endorsee or assignee thereof may, under section 1 of the judiciary act of 1875 (18 Stat. 470), sue thereon in this court without reference to the citizen- ship of his endorser or assignor. 4. LIMITATION IN CASE OF PART PAYMENT.-Under section 25 of the code of civil procedure, a payment on a promissory note, at any time after its maturity by any one who may be compelled to pay the same, constitutes the point of time from which the limitation against an action thereon 5. NEW MATTER IN AN ANSWER IN EQUITY.-New matter in an answer in equity, or an allegation not responsive to the bill, is not evidence, and the burden of proof is on the defendant to support it. 6. RESPONSES ON INFORMATION AND BELIEF.-General allegations made on information and belief, without any verifying circumstance of time, place or amount, even when responsive to the bill, are not entitled to 1. DISCHARGE OF SURETY BY EXTENSION OF TIME TO DEBTOR.-What consti- 3. IDEM.-Payment on a debt evidenced by a note and secured by a mort- 4. SURETY.-A mortgagor of property to secure the note of another is so far a surety for such other, and a payment by the maker of the note has the same effect on the mortgage as if the mortgagor was a joint maker of Before DEADY, District Judge. Mr. George H. Williams, Mr. Henry Ach and Mr. C. E. S. Mr. William H. Holmes, for the defendants. DEADY, J. This suit is brought to enforce the lien of two |