Shafer v. Bear River & Auburn Water & Mining Co.
PETER SHAFER v. THE BEAR RIVER AND AUBURN WATER AND MINING CO.
- Area
- civil
- Panel
- Solomon Heydenfeldt (author), William J. Murray, Jr., Richard L. Wells
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion — Heydenfeldt
Mr. Justice Heydenfeldt delivered tbe opinion of tbe Court.
-Mr. Cb. J. Murray and Mr. J. Wells concurred.
There is no express covenant in tbe mortgage to pay tbe money, and no action will, therefore, lie on its mere [296] recital of *the existence of the debt. Tbe declaration contains no averment of indebtedness, except by way of recital, and it avers no consideration to support tbe promise. Tbe Court, therefore, erred in instructing tbe juiy that tbe mortgage sued on contained a sufficient recognition of an existing debt to authorize a recovey. (See 4 Kent, 145.)
Tbe judgment is reversed and tbe cause remanded.
Cited by
- Union Water Co. v. Murphy's Flat Fluming Co. · 1863-07-01