Page:Federal Reporter, 1st Series, Volume 2.djvu/780

 BOUTHWICK V. WHIPPLB. 773 �upon which the burden of proof rested on the complainant, I find for liim and against the defendant. �This leaves for consideration only the special matter of defence set up in the defendant's answer, and referred to in her supplemental answer, and in the testimony of her son. This was, in substance, that she, early in 1874, began to in- dorse the paper of her son, under a promise and assurance that he would secure her against loss or damage, and that tho conveyance of April 27, 1876, was made in fulfilment of that promise, and was therefore unimpeachable by the com- plainant. And in support of this view the testimony of the son, a recital in the deed of April 27th, and this defendant's allegations, in her general and supplemental answers, were referred to and made a subject of exhaustive argument. But on behalf of the complainant it was argued and insisted that the evidence failed to show that any sufficient agreement to give security was satisfactorily proven; the fact being, as con- tended, that this defence was purely an afterthought on the part of the defendant and her son, and his or her advisers; or, if anything more than a pretencej it had no other foun- dation than some mention of security, in which no specifie property was named or pledged; and in support of this view the testimony of two witnesses, to the effect that the mother, shortly after the making of the deed, admitted that she had never heard anything of a mortgage to her until about the date-of the mortgage, was cited, as also certain passages in letters from her to her son. �And, corroboratory of this view, too, it was argued, were the serions discrepancies and inconsistencies in the state- ments of the alleged promise and agreement, by the son, in his testimony as a witness, and his mother, the defendant, in her answer and supplemental answer. Her neglect, or rather refusai, to appear as a witness in the cause, and sup- port, by her oath, as a party witness, the answer she had signed, and to contradict the testimony of the witnesses to her admission as above stated, was also referred to as a fact not to be ignored or undervalued. �Upon the defendant is the burden of substantiating this ����