Summary
In Mulford v. Brown, 28 Atl. Rep. 513 (apparently not officially reported), there was no real evidence as to how the bond and mortgage had become lost.
Summary of this case from Wilson v. StevensOpinion
02-17-1894
MULFORD et al. v. BROWN et al.
Charles A. Rathbun, for complainants. Frederick E. Marsh, for defendants.
Bill by H. Maria Mulford, Charles H. Mulford, and Aram G. Sayre, as executors of John R. Mulford, deceased, against John W. Brown and wife and others, to foreclose a lost mortgage. Final hearing on the pleadings and testimony taken before a master. Decree for complainants.
Charles A. Rathbun, for complainants.
Frederick E. Marsh, for defendants.
PITNEY, V. C. The bill in this case is founded on a bond and mortgage bearing date the 15th day of March, 1872, to secure the payment of $1,000 in one year, with interest payable semiannually, executed by Michael Bock and his wife, of Newark, to John R. Mulford, of Madison, Morris county, N. J., covering a lot of land on Ridge street, in the city of Newark, 30 feet front and 100 feet deep. Mulford, the mortgagee, died on the 16th of November, 1879, testate of a will, by which he appointed his wife, Mrs. H. Maria Mulford, his nephew, Charles H. Mulford, and his former counsel, Aram G. Sayre, his executors, (the complainants herein.) No trace was found among his papers of either the bond or mortgage set forth in the bill of complaint, except an item of interest paid thereon in August, 1872, found in a statement rendered by Mr. Sayre to Mr. Mulford of interest moneys collected by him for Mr. M. Its existence was entirely unknown to his executors until June, 1892, when its record was discovered quite by accident, as will be stated further on. At that time Mr. Bock, the mortgagor, was alive, but had previously conveyed the premises, by deed dated October 24, 1891, to his son-in-law, the defendant John W. Brown. The complainants, through their solicitor, immediately upon discovery of the record, called upon Mr. Brown for payment of the mortgage, and negotiations for a settlement were pending for several months. The bill was filed December 31, 1892, and the answer March 11, 1893. Notice for the examination of witnesses was given by complainants for the 25th of April, and proceeded at that time, two witnesses being examined, then adjourned to the 9th of May, and further adjourned until the 17th of May, and fur ther adjourned until the 21st of June, wher it was closed on part of complainants. Mr. Bock died on the 16th of May, 1893. It would thus appear that the loss to the defendants of the evidence of Mr. Bock, the mortgagor, was not due to any failure of the complainants to prosecute their suit with reasonable industry.
The loss of the bond and mortgage is accounted for by the complainants as follows: Mr. Mulford, who, at his death, was somewhat advanced in years, lived at Madison, in Morris county, and was in the habit of loaning money on bond and mortgage in Newark. For that purpose he employed Mr. Sayre, a counselor at law, and the evidence satisfies me that all of his Newark transactions passed through the hands of Mr. Sayre, and the interest was all paid to Mr. Sayre, and forwarded by him to Mr. Mulford; and all principal moneys paid off were paid in Mr. Sayre's office, either to him personally, or to Mr. Mulford or his wife at the office. At or before the date of this mortgage, Mr. Mulford became subject to occasional, disturbances in his mind, so that at times he was unfit to do business, and after 1873 he diddot attempt to do any business. It was all conducted by his wife and Mr. Sayre, and Mrs. Mulford had previously given her personal attendance with him in his various business transactions. Mr. Sayre has a recollection of preparing and procuring to be recorded this particular bond and mortgage. He has no recollection of ever seeing them after they were so prepared and recorded, but he recollects of receiving the first payment of six months' interest in August, 1872. His practice was to forward the bonds and mortgages, as soon as recorded, to Mr. Mulford, until the latter years of his life, when he kept the bond in order to indorse the interest on it, and forwarded only the mortgage to him. The theory of the complainants is that this Bock bond and mortgage was taken by Mr. Mulford from Mr. Sayre's office, and, in one of his fits of mental aberration, was lost, destroyed, or mislaid by him. The defendants offer no proof of payment, either oral or written. They rely entirely upon the fact that there is no proof on the part of the complainants of any payment of interest after August, 1872, and argue that the principal and interest must have been paid off at maturity, and the bond and mortgage given up canceled, and that Mr. Bock, the mortgagor, neglected to have it satisfied of record, and afterwards lost it; but they fail to show where he procured the money to pay it, or that he was in a condition to pay it off in one payment, and it is somewhat strange that his daughter, Mrs. Brown, who, I infer, lived at home, should have no recollection of its payment. They argue that the failure of either Mr. or Mrs. Mulford to demand the interest on this mortgage after August, 1872, indicates that it must have been paid. On the other hand, the complainants reply that Mr. Mulford may not only have lost the mortgage, but entirely forgotten its existence, and that his wife may never have known of it.
If the case rested upon so much of the evidence as has been stated, I should feel inclined to the opinion that the defendants had failed to prove the payment of the mortgage. But there is other evidence upon that subject, which seems to me to have a material bearing upon the issue of payment or nonpayment. Mr. George E. Clymer, a solicitor of this court, was employed by the finance department of the city of Newark to perfect title to lands acquired by the city under the provisions of the Martin act, and for that purpose it became his duty to examine the titles and search for incumbrances upon a great many different parcels of land. In June, 1892, he was engaged in hunting up the title to a particular lot of land, and mistook for the lot he was searching the premises covered by the mortgage in this case, and found the record of this mortgage from Bock to Mulford, and saw that Mr. Mulford was therein described as living in Morris county. Just at that time he casually met in the register's office Mr. Charles A. Rathbun, solicitor of the complainants herein, who lives in Madison and practices in Newark, and happened to be the counsel of Mrs. Mulford, one of the complainants. Mr. Clymer asked Mr. Rathbun if he knew Mr. Mulford, and called his attention to this mortgage. Mr. Rathbun thereupon called Mrs. Mulford's attention to it. Mr. Clymer also very shortly after saw Mr. Brown, who appeared, by the record, to be the owner of the premises, and had two interviews with him, in the course of which he ascertained that he had made a mistake, and that he had nothing further to do with the mortgaged premises. He swears that in one of those interviews he mentioned to Brown that there was a mortgage on the property held by Mr. Mulford, and that Mr. Brown told him that he knew it; that the property had come to him from his father-in-law, and that the matter of the adjustment of the Mulford mortgage was in the hands of Judge Thomas S. Henry; and that Judge Henry had told him to be quiet and the matter would soon outlaw; that a bond and mortgage would outlaw in 20 years, and this had but a short time longer to run,—and that he (Clymer) told Mr. Brown that that depended on the circumstances of the case; that a payment of interest or on account would bring the matter within the statute, no matter what Judge Henry said. He further says that Mr. Brown told him that the mortgage had never been paid. Pressed on cross-examination, Mr. Clymer said that he was quite sure that Mr. Brown had said that the mortgage was not paid, and gave, as near as he could, the language used by Mr. Brown, thus: "When I referred to the mortgage, he (Brown) then said, 'Yes, I know about that; it has never been paid,' and that Judge Henry had told him that it would outlaw in twenty years. Q. Did he use the word 'paid?' A. Yes, sir; I think he did." Mr. Clymer's evidence is attacked on the ground that there is reason to believe that he and Mr. Rathbun have some sort of collusion to resuscitate a stale claim on speculation, but there is not the least evidence to warrant the charge. He appears to be entirely disinterested, and the evidence shows that he was by no means a willing witness. In opposition to this evidence, however, Brown swears positively that no such conversation ever took place. He does not attempt to give a different version of it, but he denies positively that Mr. Clymer mentioned the Mulford mortgage, or any mortgage whatever, to him, or that Judge Henry's name was mentioned. He goes so far as to deny that he had ever heard of the mortgage until demand was made upon him by the solicitor of the complainants herein, and that was some time after his interview with Clymer. Now, I am unwilling to believe that Mr. Clymer manufactured his story out of the solid. I might have been willing to believethat he misunderstood Mr. Brown, and that Mr. Brown did not intend to say to him that the mortgage had never been paid; but that is something quite different from believing that Mr. Clymer manufactured a story out of the solid. And it is here to be observed that Mr. Brown had it in his power to support one part of his sweeping denial by producing Judge Henry to swear that there never had been any consultation between him as counsel and Mr. Brown as client as to this mortgage, and that he never had advised him that it would outlaw in a short time. For these reasons I come to the conclusion that the weight of the evidence is against the theory that the bond and mortgage have been paid.
With regard to attempting to ascertain the degree of blame resting upon the one party or the other for the loss of these instruments, I am unable to see that there is any more blame resting upon the complainants' testator for losing this bond and mortgage, upon the theory of its nonpayment, than there is upon the mortgagor for failing to have it canceled of record, and for losing it, upon the theory of its being paid. I will advise a decree for the complainants.