55 N.J. Eq. 329 | New York Court of Chancery | 1897
This is a foreclosure bill and is filed to foreclose a mortgage .for $1,500 on lands in Newark, given June 19th, 1872, payable one year after date, and on which the whole principal sum, with interest from August 9th, 1875, is by the bill claimed to be due. ;The mortgage was originally given by Ira W. Gonselyea and
The complainant, at the hearing, sufficiently proved the execution of the bond and mortgage, and also the payment in December, 1872, of six months’ interest on the bond ($52.50), up to December 19th, 1872. This payment was made by Barnett, who was then the owner of the property,, to Kane, then still the holder of the mortgage, and was endorsed on the bond by Kane, but the endorsement of this payment is by mistake made to December 19th, 1873, instead of 1872. There are three other endorsements of interest on the bond, each for $52.50, and dated
After getting this payment of $52,50, Blue further swears that, at Frazee’s invitation, he took dinner with Frazee and his family, in his dwelling, which was in the same building with the store, and there saw Frazee’s family, whom he remembers distinctly. There were, he says, two daughters, one a very small girl, like a dwarf; another larger girl, weighing one hundred and fifty or one hundred and sixty. Nothing is said about Frazee’s wife. After dinner, complainant loaded his goods and went home. In reference to the property, Frazee told complainrant that he had taken it in a' deai and wanted to sell it, and wished complainant to wait until he got a chance to sell it, when he would give complainant his money, and complainant then told him he must have his interest. About six months after this interview, as complainant says, he went again to Frazee for the interest, and then Frazee told him that he had sold the property to a man in New York State, whose name and address Frazee then gave .him. Complainant says that he wrote this man soon after; that he got no answer; that after two or three months he wrote again, with the same result, and that, in April, 1877, he moved from Rockaway to Nebraska, and after reaching there, wrote once more, but heard nothing. He says that on this last occasion he still had the address on a memorandum, but it has since been lost or mislaid, and complainant now says that he does not recollect either the name or the address. With the exception of these letters, complainant does not claim to have made any demand or request on anybody for either principal or interest on the mortgage since the application to Frazee, which he says he made about six months after August, 1875. When complainant left New Jersey he had but little property beyond this • mortgáge, and his pecuniary condition since April, 1877, has been such that the possession of this amount of money was a matter of great importance. It is doubtful from the evidence whether, at any time during this interval, he"had in Nebraska
After Frazee gave his evidence in Blue’s hearing, the latter was recalled to the stand, and 'being asked whether he then recognized the witness Frazee as the man he called on in August, 1875,-says, “ I couldn’t say he was; it is so long ago. I wouldn’t say positively that he'was the man. I couldn’t say.” Nothing, is offere’d in rebuttal of defendant’e evideuce or by way of corroborating complainant,. whose general reputation for truth is also directly attacked by witnesses who know his reputation in his neighborhood, both in Orange, New Jersey, where he lived before going to Rockaway, and in Nebraska.
Upon the whole evidence there is no doubt, I think, that no payment of interest on this mortgage was made in August, 1875,. by Frazee, .the owner, or anyone acting for him. Nor do I think' that, on this evidence, there can be any other conclusion,
And the improbability of complainant’s story, taken in connection with the evidence impugning his character for veracity, is sufficient to discredit his story that Frazee, or the man he took for Frazee, subsequently gave him the name and address of the purchaser, or that he ever wrote to any such purchaser demanding interest on the mortgage. And even should this statement be taken as true, it is not a sufficient explanation of
The case on the facts, therefore, as I find them, is one where the complainant does not satisfactorily explain his failure to foreclose his mortgage or make any demand for principal or. interest for over twenty years, and the question is whether, in the absence of this explanation or excuse for the delay, he is still entitled to foreclose his mortgage, on showing by satisfactory proof that it is in fact unpaid. For the complainant, it. is. claimed that he,is so entitled, and complainant’s position is that the whole legal effect of the lapse Of twenty years without payment or demand is1 simply to raise a presumption of payment, which presumption is one of fact and not of law, and that if the complainant, after such lapse of time, can still satisfactorily prove that in fact the mortgage, is not paid, the presumption of payment arising from lapse of time is rebutted and he is entitled-to recover, notwithstanding the delay is not accounted for.' ' ",
The defendant, on- the Other hand, on this' branch of the case,! contends that upon a failure to account -for or explain satisfac-i torily the delay for twenty years, the' presumption of. payment,' which arises from this lapse, of time, is absolute and conclusive,' and that the presumption arising from this source cannot, in the absence of satisfactory explanation of the delay, be rebutted by. proof, no matter how clear, that payment has not been made. The difference between the positions, as'will be observed, is as-to the nature and character of-the presumption arising from the:, lapse of time, and as to the effect of the unexplained delay, upon the presumption, where the complainant still claims to have full proof of non-payment in fact., Complainant claims that the presumption has no effect if on the whole case non-payment of: the debt is satisfactorily established, while defendant claims that, delay for twenty years, unexplained, gives to the presumption of payment, arising from lapse of time, the force and effect of a conclusive presumption of payment which cannot be rebutted.
The decisions Of our own courts and expressions of the judges in these decisions are confidently relied, on by each counsel 'asi
As the result of my examination, I conclude that our decisions, at law as well as in equity, establish the rule that unless the delay for twenty years is satisfactorily accounted for or explained, the presumption of payment of a bond and mortgage or other pecuniary debt is conclusive and cannot be rebutted simply by proof in fact of non-payment without accounting for the delay. The reason of giving this effect to the failure to explain the delay seems to be that the presumption of payment arising from a forbearance of a debt is held to arise upon the general presumption that a man is always ready to claim his own, and that if he fails to demand it for a sufficient period of time it must be because he had no right to it. The period of twenty years has been fixed as the sufficient limit of time to give rise to the presumption, and when this time has elapsed, unaccounted for or unexplained, the law, upon general principles and without reference to the circumstances of the particular case, raises the presumption of payment. If the delay is satisfactorily accounted for, then the presumption of payment from lapse of time does not apply as an absolute presumption of payment, but the delay still remains as one of the facts in the case upon which the ultimate question of payment or non-payment is to be determined, in connection with the other evidence. Thus, in Humphreys v. Humphreys, 3 P. Wms. 395 (1735), Lord-Chancellor Talbot enjoined a suit on a bond, and said (atp. 396) “that after twenty years and no interest paid during that time, a bond shall be presumed to be satisfied, unless something appears to answer that length, of time”
In Hillary v. Waller, 13 Ves. 239 (1806), Lord Eldon says (at p.266): “As to a bond * * * upon twenty years, tire presumption is that it has been paid, and the presumption will hold, unless insolvency or a state approaching it can be shown, or that the party was a near relative, or the absence of the party
As to the effect of the presumption and whether it is only evidence upon a plea of payment that may be strengthened or weakened by other circumstances, and whether the jury are therefore to judge of its strength or weakness, and pass upon it like other evidence, he says (at p. 780) that the presumption may be either strengthened or invalidated, or indeed wholly overcome, by circumstances, and that when these circumstances are matters in pais, to be proved by witnesses, the jury must judge both of the truth of their existence and of their operation and effect on the presumption. “But still,” he says, “when the length of time is wholly unaccounted for, and the presumption therefore stands in its full force, it is conclusive, and the conclusion to be drawn from it is a conclusion of law, to be declared by the court always and universally the same.” Also (at p. 788), after an examination of the cases, he says: “ From these cases, I think the conclusion irresistible, not only that twenty years affords a presumption of payment, but that that presumption,
The next case at law, Gulick v. Loder, 1 Gr. 68 (1832), was an action of debt upon a foreign judgment, brought more than twenty years after its recovery. Such judgment was not within our statute of limitations, and one question in the case was whether it could be enforced after twenty years. Chief-Justice Ewing, delivering the opinion of the court, says (at p. 71): “ It is a general rule that forbearance for twenty years, unexplained, unaccounted for and unrebutted, will extinguish a judgment as well as all other pecuniary demands.” He also says; “ It is thus seen that if >we had no express statute, a judgment of a court of our own state could not be enforced after a lapse of twenty years unexplained.” And after fully examining Buchanan v. Rowland, supra, he further says (at p. 74) that the court in that case considered lapse of time, as a matter of evidence, as presumptive proof of the satisfaction of the demand, to be always submitted to the jury, but when wholly unaccounted for, a presumption conclusive in its nature, and which the jury, therefore, are bound to regard as plenary evidence-in support of the plea of payment, and wherefrom they ought to find the plea as true.
I have referred to these decisions at length, because I think they settled clearly, at an early date and before the question arose in our chancery cases, the rule in courts of law as to the precise character of this presumption of payment arising from lapse of time, and that this was an absolute presumption of payment if the lapse of time was unexplained. So far as this question is concerned, the rule as to the effect of presumption is a rule of evidence, which is the same in equity as at law, and I think a careful examination of the cases decided in chancery will also show that this has been the rule here adopted.. In some of these cases, decrees for payment have been granted on foreclosure of mortgages more than twenty years overdue, and
In Olden v. Hubbard, 7 Stew. Eq. 85 (1881), a bill was filed after the lapse of twenty-three years without payment or demand, and no explanation or excuse for the delay was shown in the bill. Chancellor Runyon sustained a demurrer to the bill, stating (at p. 86): “In the absence of sufficient explanation or excuse, the defendant is entitled to the benefit of the presumption [of payment] on demurrer.”
In Stimmis v. Stimmis, 33 Atl. Rep. 468, a mortgage, more than twenty years overdue, was, on demurrer, held not barred, because the bill showed that, within seven years before filing the bill, the defendant had acknowledged the existence of the mort
In Magee v. Bradley,38 Atl. Rep. 103 (Vice-Chancellor Reed, 1896), a mortgage was held barred by lapse of over twenty years without payment or demand, and the mere kinship of the parties was held insufficient to account for the delay.
There is another class of cases in which the circumstance relied on to overcome" the presumption of payment is an acknowledgment of the validity of the debt, after the twenty years’ unexplained delay, but within twenty years of the filing of the bill. Murphy v. Coates, 6 Stew. Eq. 424 (1881), is of this class. In this case two mortgages were due, one in 1855 and one in 1856. In 1879 the mortgagee wrote on each of them and on the bonds an acknowledgment that no part of the principal or interest had been paid, and that the whole was due from the date of the instruments. Ho explanation of the intervening delay appears to have been made in the case. • This acknowledgment was held sufficient to overcome the presumption arising from lapse of time, and decree for payment, based solely on this acknowledgment, was held effective against the second mortgagee.
Acknowledgments of this character, even if not accompanied ,by express promise to pay, were always considered in courts of law as sufficient to raise a new promise, which would revive a debt on simple contract barred by the statute of limitations. The equitable obligation to pay the debt was a sufficient consideration for the new promise of which the acknowledgment was sufficient evidence. Parker v. Butterworth, 17 Vr. 244 (Depue, J., at p. 847). Upon the same principle, an acknowledgment of the validity of a mortgage debt, after the expiration of twenty years, would equitably have the effect of imposing on the debtor the obligation to pay it, preventing him from claiming that at the time of the acknowledgment he was discharged from the debt by reason of the presumption of payment. An acknowledgment sufficient to overcome the positive bar of a statute is certainly sufficient to overcome a mere rule of evidence, the general pur
The general result of all these casés, as I conclude, then, in relation to the point now in question, is to establish the rule, in equity, that the lapse of twenty years before filing the bill, without demand, payment or acknowledgment of a mortgage debt, unaccounted for and unexplained, gives rise to a conclusive presumption of payment, which cannot be rebutted by proof that the debt is not in fact paid. The rule, although operating harshly in particular cases, is founded upon the great general and public benefit of fixing the time when titles and possessions of property may be forever quieted against claims which are held back without cause. Applying this rule, I will advise that the bill be dismissed upon this ground. The defendant claims that, independent of this rule, the complainant’s claim is barred by laches and also by the statute of limitations. But, as to the bar of the statute of limitations, it must be observed that this statute, not being expressly applicable to equitable remedies, is applied
In Wanamaker v. Van Buskirk, supra, the chancellor, although intimating that this section may properly be held so applicable, withholds decision of the question as not necessary, and Chancellor Halsted, in Evans v. Huffman, although also concurring in this view of the statute, puts the decision of the case on other grounds. None of the later eases in chancery appear to decide .the question expressly, and it is one of such importance, and the effect of holding the statute applicable would involve such consequences, that adjudication on it should not be made unless, necessary for the decision of the case. In view of the present status of the decisions in chancery and of the absence of any decision at law holding the statute applicable to a suit by mortgagee, and defining the legal status of mortgagor and mortgagee under this statute, and inasmuch as a decision is not necessary, I do not pass on this question. t
In reference to the claim of laches — while laches of the complainant is a well-recognized defence, yet it is settled that, up to
In the present case, the last acknowledgment of the debt was in January, 1874, by Frazee’s acceptance of his deed, which was made subject to it. This was less than twenty-one years before filing the bill, and the case shows no actual detriment or loss to the mortgagor or his assigns by reason of loss of evidence or otherwise. In this case, therefore, the question of laches seems to come back ultimately to the point of imputing laches only by force of the rules relating to presumption of payment after lapse of twenty years unexplained, and the case is, therefore, one which, I think, should be disposed of .directly upon the operation of this rule alone.
I advise decree dismissing the bill, with costs.