Opinion
07-09-1888
ROCKHILL v. ROCKHILL et al.
M. Hutchinson and Philip S. Scovel, for complainant. Eckard P. Budd and Mark R. Sooy, for defendants.
Bill by Isaac Rockhill against Edward Rockhill and others, heirs at law of Thomas Rockhill, deceased, to foreclose certain mortgages executed by the latter in his life-time.
M. Hutchinson and Philip S. Scovel, for complainant. Eckard P. Budd and Mark R. Sooy, for defendants.
BIRD, V. C. This bill is filed to foreclose three mortgages. The mortgages were all given by Thomas, the brother of the complainant, who has since died. His children and heirs at law are the defendants. They have filed their plea, and set up possession by said Thomas and his heirs for over 20 years, and that no part of the principal or interest claimed to be due has been paid within 20 years, in bar. The mortgages were all given more than 20 years ago. The interest was paid and indorsed upon them in the year 1858. From thence until the year 1884 no interest was indorsed, and none actually paid, except according to the agreement between the complainant and his brother now next referred to. The complainant insists that an agreement was entered into between him and his brother, in the year 1858, which overcomes the presumption of payment from the lapse of time. He says that in that year his brother was embarrassed financially; and, besides the two mortgages which he then held upon the premises, there was a third one, held by one Ridgway, which it was understood between him and his brother he should have assigned to him, which was done. He says it was also understood that his brother would make and deliver to him a conveyance of the land so mortgaged, and that that was done. He further says that it was also understood and agreed between them that he should, by virtue of such deed, hold the title for his brother, and that he would do so without the payment of any other interest upon the said mortgage than the amount of taxes assessed upon the premises year by year. This agreement is distinctly sworn to by the complainant, and I find nothing in the case that qualifies it to such an extent as to warrant me in disregarding it. The complainant up to that time held the two mortgages, the first and the last. He did take an assignment of the second mortgage from Forsyth, to whom it had been assigned by Ridgway. Hedid also take a deed which conveyed to him the equity of the redemption. He did allow his brother to remain in possession, and he and his children continued in such possession until the brother's death. His brother or his children paid all the taxes. Thus the conduct and the dealings of the parties are consistent with what the complainant swears the agreement was. Again, the complainant not only held the three mortgages, but continued to hold the three bonds against his brother which the mortgages were given to secure. If there had been any payment at the time of the transfer, or at any other time, or if it had been agreed that the bonds were to be considered satisfied, it would not only have been business-like but most likely that the mortgagor and obligor would have had his bonds canceled and surrendered, even though it might have been desirable to allow the mortgages to stand as a muniment of title. This seems also to sustain the insistment of the complainant that he was to hold title for the benefit of his brother, and that his brother was to have the possession of the property his life-time, upon the payment of the taxes. These transactions make it very plain that the said parties enjoyed very intimate business relations, as well as being related as brothers. Nor is there a word of evidence to show actual payment. There is nothing in the case whatever to sustain the plea except the presumption which arises from lapse of time, and the conveyance of the equity of redemption, and the possession of the grantor and his heirs for over 20 years after such conveyance. These things seem to be explained and to be overcome by the agreement between the parties, which is established by the testimony, and which is consistent with the relation of the parties to each other. That Thomas was insolvent at that time is beyond doubt. That such considerations may be taken into the account in determining the issue raised by such a plea as is presented here I think is settled by the case of Wanmaker v. Van Buskirk, 1 N. J. Eq. 685, 23 Amer. Dec. 748; Howland v. Shurtleff, 2 Metc. 26, 35 Amer. Dec. 384, (showing that the presumption is always disputable;) and Kane v. Bloodgood, 7 Johns. Cas. 90, 11 Amer. Dec. 417, 439.
There is no doubt but that the whole amount of the first and third mortgages is due, with interest from the date of last payment of taxes made before the death of Thomas. But it is insisted that there is nothing due on the second mortgage given to Ridgway; and this is based on these facts: The mortgagor purchased the tract of land called the "Meadow Tract" for $892.50, and gave a mortgage on the same for $500, and also a mortgage on the tract named in the bill for $400, to secure the purchase money; the amount of both mortgages being more than the purchase money. Three years after this purchase, (in 1858,) the complainant took title to the Meadow tract, covered by the $500 mortgage, and paid the amount due on the said last-named mortgage as part, at least, of the consideration. The complainant says that he did not have that $500 mortgage canceled of record until 1884. The defendants urge that that conveyance to the complainant was made to satisfy both mortgages given by their father, Thomas, for the land. The only affirmative proof of this is the consideration of the deed to the complainant, which is $892, and the only negative proof is that there is nothing to show that any payment at all was made. There is no other proof that the land was worth $892 than the consideration named in the deed; and that it was not worth that is strongly to be presumed from the fact that the grantor to Thomas required a mortgage on another tract for $400 (nearly half) of the purchase money; and, after Thomas bought it, he sold and removed the timber standing on it. In such case the law gives the complainant the advantage. He has the evidence of indebtedness; and this fact raises the presumption in his favor, and casts the burden on those who declare the contrary. How has it been met? The complainant cannot tell how the matter was settled, but remembered that, at the time he took the conveyance for the meadow tract, not quite all of $400, and interest due on the Ridgway mortgage, remained due. From his testimony Iinfer that there was a large amount of interest then due, but that, at the settlement which accompanied the conveyance of the meadow tract, the $500 mortgage was paid, and that some portion of the amount of principal and interest due on the $400 (Ridgway) mortgage was also paid. The statement of the complainant warrants me in concluding that, at the time he took the title to the meadow tract, he allowed his brother, on settlement, the $500 mortgage on that tract, and also a portion of the amount due on the $400 (Ridgway) mortgage on the tract named in the bill. This leaves the case, it is plain, in a very unsatisfactory state; but I must deal with it as I find it. It stands thus: The plea of payment because of lapse of time has been overcome. The complainant holds the $400 (Ridgway) mortgage without any proof of payment except his own admission that, after the settlement and after he had taken the title to the meadow tract, not quite all of the amount due thereon remained unpaid, without being able to state what amount was then actually paid. In such case, injustice is quite sure to be done to one party or the other; but the court is not responsible for the result of such extreme negligence of the parties. I cannot say that the mortgage has been paid so long as the complainant produces it, with all just signs of ownership; and, since he says that something has been paid on it, I cannot allow him the whole amount that appears to be due from a simple inspection of the instrument itself. I will divide it, and charge the defendant with one-half of the principal, and interest from the time of the last payment of taxes prior to the death of Thomas.
NOTE.
The existence of means of payment in the hands of the creditor, and the lapse of time, are conclusive evidence of an actual discharge of the debt, or are of themselves facts which require a court of equity to adjudge such application to have been made. Belden v. State, (N. Y.) 8 N. E. Rep. 363.
Evidence that the obligee in a bond was in poor circumstances, and dependent upon the interest of the bond for support, and that the obligor was always able to pay the interest, and paid the obligee money whenever she needed it, is sufficient to raise the presumption that the interest has been fully paid. Mertz's Appeal, (Pa.) 7 Atl. Rep. 187.
Prior to the adoption of the Michigan statute of 1879, courts of equity followed the analogies of the law, and refused relief in cases where it would have been barred at law by lapse of time. Baent v. Kennicutt, 23 N. W. Rep. 808; see, also, Cowie v. Fisher, 8 N. W. Rep. 586; but the presumption of payment could be rebutted by circumstances, Baent v. Kennicutt, supra; Baldwin v. Cullen, 16 N. W. Rep. 191; Lewis v. Schwenn, (Mo.) 2 S. W. Rep. 391. A mortgage is not necessarily presumed paid, from lapse of time, if the mortgagee asserted his right to foreclose in due season, and there does not appear to be any adverse holding under the mortgage. Baldwin v. Cullen, 16 N. W. Rep. 191.
After the death of an executrix and trustee, a mortgage given to secure a loan of money made by her was found uncanceled on the record. Held that, after the lapse of 48 years from the date of the loan to the death of the mortgagee, and 34 years from the date of the loan to the death of the executrix, the non-production of the bond and mortgage will furnish satisfactory and conclusive evidence of their payment. Lammer v. Stoddard, (N. Y.) 9 N. E. Rep. 328.
Where a party claiming to be an assignee of certain mortgages made in 1853, and claimed by him to have been assigned in 1866, testifies that the agreements relating to the sale of the mortgages, and the assignment to him, were, while in his possession, eaten by rats, the fact that the documents were placed within the reach of rats by a business man will be held plenary proof that they were of no other value than as food for rats, and the presumption of payment from lapse of time will be allowed to prevail. Ward v. Greinlds, (N. J.) 10 Atl. Rep. 374.