Page:Federal Reporter, 1st Series, Volume 9.djvu/765

 7O0 FBDBRAIi REPORTER. �Without at this time eonBIdering more fully the question presented, whether the several acts of February 25, 1877, and February 28, 1878, impair the obligations of the contract between the city of Duluth and its creditors, it is clear to my mind that the bill on its face contains sufficient equity and calls for an answer. �The demmrrer is overruled, and the defendant can have until Jan- uary rule-day to answer. �MoCeary, C. J., concurred. �KOTE. Consult 92 U. S. 307; 93 U. S. 266; 100 U. S. 514; O'Connor v. MempMs, IS Cent. Law. J. 150; 7 Biss. 146. ���Demond V. Crart. �[Circuit Court, B. D. Nm York. January 11, 1882.) �1. Rev. 8t. New York, voi.. 1, p. 738, § 139, Constbued— Mobtgages. �Revised Statutes of New York, vol. 1, p. 738, § 139, which declares that no morlgage shall be construed as implylng a covenaat for the payment of the inoney, and that if there be ho express covenant for such payment in the mort- gage, and no bond or other separate instrument to secure payment, the remedy of the mortgage shall be confined to the land, construed not to mean that, in the absence of an express covenant in the mortgage for the payment of the debt, and any bond or other separate instrument to secure payment, a personal action cannot be maintained for a mortgage debt when proved by competent evidencp, whether lu writing or paroi ; but that an action for a debt secured by mortgage cannot be sustained merely by the production of the mortgage, when it contains no express covenant to pay the debt. �Motion to Set Aside a Verdict and for a New Trial. �Johnson e Lamb, for plaintiff. �S. W. Holcomb, for defendant. �Wheeler, D. j. This cause has been beard upon the motion of the defendant to set aside the verdict for the plaintiff, and for a new trial. The plaintiff was surety for the defendant on an appeal bond in the state courts of New York. The judgment appealed from was af&rmed and the condition of the bond broken. The plaintiff paid the judgment, and the defendant, by a deed absolute on its face, conveyed an interest in some lands and houses situated in New York to the plaintiff to secure repayment of the sum paid. The verdict is for the amount due of that sum. The defendant claimed at the trial that this conveyance was in reality a mortgage, and that the plaintiff could not recover for this money on account of a provision in the stat- utes of New York— vol. 1, p. 738, § 139; vol 3, (6th Ed.) p. 1119, § ��� �