58 N.C. 423 | N.C. | 1860
This bill was filed to enforce a mortgage made in 1833. It appeared that Elizabeth Becknall had made the mortgage in question to secure the amounts which her children (the plaintiffs) had recovered against her as executrix of her husband's estate in the court of equity of Wilkes, and that all of them had been paid off but the plaintiff Clara Becknall and Noah Brown, who married one of the daughters. As to Clara, it appeared that she and the defendant Larkin J. Becknall, with their mother, the defendant Elizabeth Becknall, came to a general settlement and adjustment of their claims and dealings in 1847, and it was ascertained that Mrs. Becknall owed Clara $128. At that time Larkin bought from her a lot of land containing 60 acres, assigned to her in the *332 partition of the estate of her father, at the price of $60. It was arranged that Mrs. Becknall should convey her interest in the land mortgaged in 1833 to Larkin, and he should take on himself the debt of $128 which Mrs. Becknall owed Clara. Mrs. Becknall and Clara made a joint deed conveying both tracts of land to Larkin, it lying adjoining, and he to secure Clara in the $128 which Mrs. Becknall owed her and the $60 which Larkin owed her for the land, made her a mortgage deed of the whole land which they had jointly conveyed to him, which was duly registered. This deed and settlement are relied on by the defendants as a bar to the equity of Clara arising on the deed of 1833.
(424) As to Noah Brown, the defendants rely on the length of time, from 1833 to 1847, during which no attempt was made to enforce the mortgage deed. The mortgagor was in possession of the mortgaged premises during all that period, using and cultivating them, and meanwhile no money was paid on the mortgage debt, principal or interest.
Proofs were taken as to recognition of Brown's equity after 1847, made by Mrs. Becknall, which are noticed in the opinion of the Court. The case is narrowed down to the claims of Clara Becknall and Noah Brown. In respect to Clara, we are of opinion that all of her right under the deed of 1833, for the enforcement of which the bill is filed, was distinguished and merged in the deed of 1847, which was taken as a substitute therefor; consequently her remedy should be on that deed.
In respect to Brown, we are of opinion that his right under the mortgage is presumed to be abandoned from lapse of time. The land was a fund out of which he could have enforced payment of the amount due at any time during the space of more than ten years, during all of which time the mortgagor was allowed to retain possession. From this state of things, a presumption arises under the statute that there was no payment of any part of the debt, or even of the interest, and nothing was said or done in respect to it; that the matter has been arranged in some way, and the right to enforce the mortgage abandoned. The Court is required to act on this presumption unless it be satisfactorily rebutted. Loose declarations, such as are proven in this case, after the right is presumed to have been abandoned, cannot be allowed the effect of rebutting the presumption, for the object of the statute and of the principle of the common law, which it commends so highly as to require it to be acted on in ten years, instead of twenty, is to prevent fraud and (425) perjury in regard to "stale claims," on the ground that one who *333 sleeps on his right for ten years either has arranged it in some way, or ought to lose it because of his negligence.
PER CURIAM. Bill dismissed.
Cited: Ray v. Pearce,
Dist.: Thornburgh v. Masten,
