73 Mich. 347 | Mich. | 1889
On October 10, 1883, the defendant Edward A. Abbey executed and delivered to the complainant a mortgage for $2,700 upon a certain piece of land, situate in the township of Milan, in Monroe county. This mortgage was given to secure the payment of fourteen promissory notes. The first note was for $150, payable, with interest at 7 per cent, on the whole sum, April 1, 1885. Then followed twelve $200 notes, payable one in each year thereafter, and the ‘ last note, of $150, payable on April 1, 1898. The maker of these notes, by the terms of the mortgage, could pay $200 or more at any time
The complainant filed his bill to foreclose, April 23, 1886, claiming default in payment of an installment, and electing to declare the whole balance due, which at the date of the filing of the bill was claimed to be $2,581.15. The bill admits the payment of the first three notes, but denies- the payment of the note for $200 falling due 'April 1, 1888, except interest, which is admitted to be paid up to April 1, 1885. The bill alleges that Tennyson has obtained, possession of this note in some manner unknown to complainant, and retains the same, -falsely and fraudulently pretending and claiming that the same has been paid.
The defendants answer that Tennyson has paid on said mortgage and notes the following sums: March 31, 1885, $242.20; June 14, 1884, $366.60; May 19, 1885, $200; and has paid the following notes: One $150; one $200; one $200, and indorsed on same $50, March 31, 1885; one $200, and indorsed on same $50, May 19, 1885; that the above notes have been fully paid and satisfied by said defendant, and interest (has been paid) in full on said mortgage up to April 1, 1885; and that a sufficient tender on or before April 1, 1886, was made of the interest falling due on the balance unpaid on that day.
The real controversy, then, is, was the note for $200, due April 1, 1888, paid by Tennyson? The court below found against Tennyson, and entered a decree for the complainant. Abbey does not appeal.
Baird claims that no further receipt was ever given, and but one other payment ever made on the mortgage, which was the sum of $150, and interest on the same from April 1, 1885, paid on September 23, 1885. This payment corresponds with the last one claimed by Tennyson, which he thinks was in August, 1885. Both agree that, at the time this payment was made, one note was given up to Tennyson as paid. Baird contends that it was the note due in 1887, and Tennyson claims it was the one due April 1, 1888. He swears that on May 19, 1885, he paid to Baird the sum of $200, and interest on $150 from April 1, 1885; that at the time he took up the 1887 note, which had $50 indorsed on it; and that Baird then and there indorsed $50 on the 1888 note. He produces the following receipt to substantiate this claimt
“$200. East Milan, Mich., May 19, 1885.
“Received from Patrick Tennyson two hundred dollars, being payment in full of note maturing on or before the first day of April, 1887. , N. D. Baird.”
He also produces the note due in 1888, which he claims
“$50.00. May 19, 1885.
“Received on the within note, $50.00.”
Baird denies that this indorsement is in his handwriting, but admits that a like indorsement upon the 1887 note was written by him. He also denies his signature to the receipt for $200, dated May 19, 1885. Does not know how Tennyson came into possession of the 1888 note, as he never delivered it to him, and cannot tell and has no idea how Tennyson got hold of it. All the payments, both the admitted and disputed, are claimed to have been made at the store of J. W. Meadows. Baird swears that the two receipts, — the only ones signed by him, — were written by Meadows. Meadows, when first examined on behalf of the defendant, testified that he wrote the $242.20 receipt, but that the one for $366.-60 was not in his handwriting. From its appearance he thought it must have been written by C. R. Bentley, and that the one for $200 was written by him, and the signature he thought was Baird's. He could not recollect writing it, or any circumstance connected with it, or the payment of the $200 as claimed by Tennyson, but he did remember the circumstances that led to the giving of the receipt for $242.20, and remembered writing it.
Before the taking of the testimony was closed, Meadows was recalled by the defendant, and testified that he recollected the payment of the $200, and that at the time of such payment a paper was given up by Baird to Tennyson, —;a note, — which had an indorsement of $50 upon it. One hundred and fifty dollars paid this note, and $50 was indorsed on another note. He is shown the note due in 1888, and thinks that is the one upon which such indorse.ment was made; remembers, also, the payment of March 31,
C. B. Bentley testifies that he was at Meadows* store when money was paid by Tennyson to Baird. Has no recollection of being called upon to do any business for them but once. His attention is called to the receipt for $366.60, — the first payment. Thinks it is in his handwriting, but does not remember anything of the transaction. Was present May 19, 1885. Saw Meadows draw and Baird sign the $200 receipt on that day, and the money paid. A note was taken up at the time, but he did not look at it, and cannot tell which note it was. He also remembers that Baird on the same day paid to him, out of the money he received from Tennyson, a payment upon a note of $l,800j which he held against John S. Williams, secured by mortgage. At first he testified this payment was $150, but upon producing the note he said it was $100.50, which corresponded with the indorsement on the note. He also testified that he was
We have carefully examined the signature of Baird to the three receipts; also the two indorsements, — one on the back of the 1887 note, and the other upon the 1888 note. We are not prepared to say that the signature to the $200 receipt and the indorsement upon the 1888 note are forgeries. From external appearances they appear to be genuine, when compared with the signatures and indorsement admitted to have been made by Baird. Unless they are forgeries, and Tennyson, Meadows, and Bentley have committed perjury, the defendant must prevail as to this $200 payment. The written evidence supports his claim, and the preponderance of the oral testimony is with him. Baird may be honestly mistaken about this payment, but Tennyson, Meadows, Bentley, and Mrs. Tennyson, also a witness for the .defense, must have all committed perjury, and some one have been guilty of two forgeries, if he is not mistaken, and the disputed payment not made as claimed. It is certain that neither Tennyson nor his wife could have committed the alleged forgeries. Neither of them could write well enough, if at all, to have done this. There is shown nowhere in the evidence any motive for the commission of either forgery or perjury by either Meadows or Bentley, nor is anything evinced by the evidence against their character as honest and reputable men. '
The strongest argument used against the testimony of Tennyson and his wife is this: Proof was given by several witnesses that in April, 1886, Baird and Tennyson met. at the store of Meadows by appointment, as Tennyson desired to make further payment on the notes and mortgage. Tennyson asked Baird how much there was due on the mortgage. Baird answered, $2,150. Tennyson said, “I thought I had paid four notes.” Baird replied^.
“That is my handwriting; where is the second receipt I made?”
And she replied that it was in her pocket, but she did not take it out. But whether or not Mrs. Tennyson said, at this time, that she had burned the receipts or notes, and refused or failed to produce them, can have but little bearing on the case, except as it might affect their credibility as witnesses.- The fact remains that, upon the trial, the defendant produced the four notes, and a receipt for $200 in Meadows' handwriting, signed by Baird, and that the 1888 note had a $50 indorsement upon it, of date May 19, 1885, in Baird's handwriting. We say in Baird's handwriting, because it appears externally to be his, and there is no evidence, save his own, that it is a forgery. Whatever discrepancies and contradictions there are in the testimony on the behalf of the. defendant, the possession and apparent genuineness of. the papers in his hands remain in support and in corroboration of his claim.
The testimony of Meadows, first given, in which he did not recollect anything in relation to the $200 payment, was taken before the confession of Morey, and his later evidence, that he remembered the transaction, was given after such confession. It is argued by the counsel for the complainant that Meadows in effect changed his testimony, and committed perjury, in order to save Morey and Tennyson from prosecution for burglary and larceny, as well as himself or some one else from the charge of forgery.
We cannot give heed to this "argument, as there is nothing but supposition to support it. While in a civil case it is only necessary to establish the commission of a crime by a preponderance of evidence, there should, however, be testimony of sufficient weight and character
The defendant Tennyson, at the last meeting of the parties, tendered the complainant the sum of $136.50, which was the full amount of interest then due, upon the theory that he had paid the 1888 note of $200. Therefore the complainant had no right to commence foreclosure at the time he filed this bill, it being filed upon the theory that an installment of interest had become due and was unpaid, and by the default of payment he was entitled to declare the whole sum, principal and interest, ■due on the mortgage.
The decree of the court below is therefore vacated and set aside, with costs of both courts to the defendant Tennyson, less the sum of $136.50, which may be deducted from the amount of such costs. A decree will be entered here dismissing complainant’s bill.