Opinion
10-07-1890
KETCHEM v. GULICK.
Oscar Jeffery, for complainant. J. M. Roseberry, for defendant.
Oscar Jeffery, for complainant. J. M. Roseberry, for defendant.
The bill is filed to foreclose a mortgage which had been assigned to the complainant. The defense is that it has been paid. In such case the burden is on the defendant. The complainant admits the payment of $150, $100 of which had been paid when it was assigned to him. The allegation upon the part of the defendant is that the whole balance of the principal which was about $100, and interest, was fully paid by him at different times in corn, in rye, and in house-rent. There were some discussions as to the right of a party to make payment of amortgage in this manner. Authorities are cited showing that an account cannot be setoff against a mortgage. The law in this respect cannot be questioned. No proposition of the law can be plainer than that a mortgage debt, or any other debt or claim, may be discharged by articles of merchandise, or any other personal property, if tendered and received for that purpose, as well as by money.
In this case the complainant admits that he rented a house of the wife of the defendant, and that, when the rent came to be paid, it was agreed between them that $50 of the rent should be applied towards the discharge of this mortgage. This was in 1876, yet no indorsement of the $50 was made upon the bond by the complainant until just prior to the commencement of this suit. In 1872 the defendant worked the farm of the complainant in shares. Among other productions were a crop of corn and of rye. The defendant says, upon oath, that, when he was about to leave the premises the next year, he had agreed with the complainant to sell to him his share of the corn; and that the value of it should be credited upon the bond secured by this mortgage; and that the whole value of this interest was about $60. The complainant denies making any such purchase, or entering into any such agreement. The defendant says there was no one present when the agreement respecting the corn was made. The complainant said, instead of his buying corn of the defendant, he sold him $10 worth of corn. Defendant also says that he sold to the complainant the rye for $35, and that it was agreed that that should go to the discharge of the bond and mortgage. The complainant admits buying the rye, and says the price was to be $30, and that it was to go in discharge of the accounts which he had against the defendant, mentioning some items of things which he had sold to the defendant, and producing his books of account in which he has charged the defendant with sawing lumber for him, in all amounting to twenty-one or two dollars. But he has nowhere given the defendant credit on this account with the rye. Mrs. Gulick says that, when the settlement was had for the rent of her house, she understood that $50, which she allowed to go upon the payment of the bond and mortgage, was in full satisfaction of the amount then due. This was in 1876, as above stated, and it appears that nothing passed between these parties respecting this mortgage until just prior to the commencement of this suit. During this interval, the defendant worked the farm of the complainant two or three different times as he had before; yet it does not appear in any other settlement that the mortgage was mentioned, or that any claim was made against the defendant on account thereof. It may be said that this shows great indifference upon the part of the defendant as to his rights, if the mortgage was really paid. There is one circumstance in the case which quite accounts for this trust or confidence of the defendant in the complainant. The complainant not only had this bond and mortgage against the defendant, but for all of these years, nearly 20, he had the possession of the deed of the defendants for the land upon which the mortgage was. And when the wife, or wife and daughter, made inquiry of the complainant about the deed, the mortgage also came to be talked about; and I can have no doubt, as the testimony stands, that the complainant gave them to understand that the mortgage was discharged, and that he had assured them it was of no account to them. I think he also intended to convey the same impression to the son of the defendant. The son was talking to him about building a barn upon the lot when the complainant called his attention to a judgment against his father by one Stewart, and said to him, in effect, that the mortgage was discharged, but that, if he would give it up, then Stewart would proceed to enforce his judgment. I think that, when it is considered that the complainant was so anxious about his claim as to insist upon the application of the rent to his payment, it will be concluded that he would not have allowed 14 years to pass before in some way asserting his right to his balance, if any such balance remained due. This circumstance, together with the testimony of the defendant, supported as it is by the admission and declaration of the complainant, sworn to by Mrs. Gulick and by the son and daughter, fully sustain me in saying that the defendant has met the burden which the law casts upon him. I think the complainant's bill should be dismissed, with costs.