Opinion
Decided June 4, 1912.
BILL IN EQUITY, to foreclose a mortgage. The defendant filed an answer denying the execution of the conveyance and also alleging that if she did it was to secure the payment of her husband's debt. Upon the trial the plaintiff produced evidence showing that the mortgage was given by the defendant to secure the purchase price of the property mortgaged, and that there was a default both as to interest and principal. The defendant's motion for a nonsuit was denied, and she excepted. A previous bill had been filed on account of a default of an interest payment. The amount then due, with the costs, was paid, but the bill had not been dismissed when the present one was filed. The defendant moved that this bill be dismissed because of the pendency of the prior one. The motion was denied, and she excepted. No evidence was introduced by the defendant. A decree for the plaintiff was ordered, and the defendant filed a bill of exceptions which was allowed by Pike, J., at the April term, 1911, of the superior court.
Remick Jackson, for the plaintiff.
Hugh Moore, for the defendant.
The defendant's counsel has not furnished a brief, and no debatable question has been found in the case. The evidence, instead of being conclusive in favor of the defendant, was conclusive against her. State v. Harrington, 69 N.H. 496. The bill was for an earlier default and not for those relied upon here. In such a case the doctrine that a second suit must abate has no application.
Exceptions overruled.
All concurred.