15 Fla. 180 | Fla. | 1875
delivered the opinion of the court.
The appellant was appointed by the court of ordinary in Georgia in 1866 as administratrix of the estate of her husband, Edward J. Buckmaster, who died in that year, and brought two suits in equity in the Circuit Court of Duval county for the foreclosure of two several mortgages. One of the suits was upon a mortgage executed December 3, 1S53, by George Kelly and wife to ■ Buckmaster, to secure the payment of a note of Kelly of $1,200, due four months after date, and covered an undivided one-half of twelve acres, upon which was a mill. In this suit Alexander Wallace, R. Dorman, R. Iiicks and the heirs of Jed Erye and others were defendants. The other suit was for the foreclosure of-a mortgage, executed by John E. Lambeth to Buckmaster, covering an undivided one-fourth of the same twelve acres, to secure the payment of two notes dated July, 1, 1854, for $1,058.33, and $1,128.33 respectively, due May the 1st, 1855, and May 1, 1856. Lambeth was the only defendant.
The first named bill was answered by Dorman, Wallace and the heirs of Erye. Wallace and Erye’s heirs answered that they were in possession of the property as purchasers in good faith, and had purchased upon advice that the title was good, and'allege that the mortgage and notes of Kelly were paid and satisfied. The suit upon this mortgage was commenced in April, 1873.
No answer was filed in the suit against Lambeth.
By stipulation of counsel the two suits were consolidated.
In the suit upon the Kelly mortgage the complainant
Upon the pleadings and testimony the court decreed that the Kelly notes and mortgage were paid and satisfied; that the undivided one-fourth, covered by the Lambeth mortgage,, be sold to satisfy the Lambeth notes, and that commissioners be appointed to partition and set off the one-fourth, in severalty, to be sold.
From this decree the complainant appealed.
The defendants Wallace and Frye rely upon the lapse of time and other circumstances connected with the Kelly' mortgage, as presumptive evidence that it is satisfied by payment. The note became due April 3,1854, and the bill was filed April 15, 1873, being fully nineteen years. After the execution of the mortgage by Kelly to Buckmaster, Kelly, a short time before the money became due, to wit: February 26, 1854, executed another mortgage for $3,738.50 to Mary L. Wooten; which latter mortgage was, foreclosed in 1856, and Mrs. Wooten became the purchaser, and after-wards conveyed to Hicks, one of the defendants in this suit upon the Kelly mortgage. Wallace, in his answer, asserts that the Kelly ■ mortgage was satisfied out of the money raised on the Wooten mortgage. The' testimony discloses also that after 1853, Buckmaster removed with his family to Georgia, and resided there until 1866, when he died. Mrs. Buckmaster testifies that at some time after removing to Georgia, she heard her husband speak of his mortgages in Florida, including the Kelly and Lambeth mortgages, as existing mortgages which had never been paid, cancelled or foreclosed, and in connection had heard him say that the only mortgage he ’ had in Florida, which had been paid or foreclosed, was one held against a house and lot of Mr. De
The first question made by appellants is upon the admission of Wheaton’s testimony, he having been plaintiff’s attorney in • the commencement of the suits, and afterwards being a witness and attorney in behalf of the defendants, Wallace and Frye. This general objection is not tenable.
The next error alleged is, that the court found and decreed that the Kelly mortgage and note were paid and satisfied. Here it will be observed the period of nineteen years had elapsed after the mortgage debt became due before suit.
The doctrine, that after the lapse of twenty years a jury might presume a bond to be paid, was first laid down by Lord Hale, and in.this he was followed by Lord Holt, who held that if a bond be of twenty years standing, and no demand proved, or good cause shown for so long forbearance on solvit ad diem, he should intend it paid. The same doctrine was afterward held by Lord Raymond, in the case of Constable vs. Somerset, (reported in 6 Mod., 22.)
In Rex vs. Stephens, 1 Burr., 434, Lord Mansfield says there was not any direct and express limitation of time when a bond should be presumed to have been satisfied; the general time, indeed, was commonly taken to be about twenty years; but he had known Lord Raymond to leave it to a jury upon eighteen years. And in Hull vs. Horner, (1 Cowp., 109,) he said the jury might presume the debt to have been discharged where interest did not appear to have been demanded' or paid-for sixteen years; but if a witness is produced to the contrary, as by showing the obligor not to have been in solvent circumstances, or a recent acknowledgment of the debt, the jury must say to the contrary. In Darwin vs. Upton, (2 Saunders R., 175, C.,) the same judge says, the jury may presume the debt to be discharged if no interest appears to
Lord Ellenborough, in Colsell vs. Budd, (1 Camp., 27,) says there must be a lapse of twenty years, or a less time, with some circumstances to strengthen the presumption, and very slight evidenceis necessary. The Supreme Court of New York, in Clark vs. Hopkins, (7 Johns., 556,) refused to allow a judgment to be entered upon a bond and warrant of attorney after the lapse of eighteen years.
The same court, in Jackson ex d. Martin vs. Pratt, (10 J. R., 381,) Kent, C. J., says, where no possession had been taken under a mortgage, nor any interest paid, nor steps taken to enforce it for nineteen years, it was held not to be a subsisting outstanding title, and that a jury might well presume it satisfied, without auxiliary circumstances.
In Blake vs. Quash, (3 McCord, Law R., 340,) the court held that fourteen years, without demand of payment, or interest paid upon a bond, the attorney of the obligee residing in the immediate vicinity of the obligor meanwhile, and the attorney having a reputation for vigilance in like cases, raised a presumption of payment.
DeSaussure, chancellor, in Winstanley vs. Savage, (2 McCord Chy., 438,) says : “ The court is not exact as to twenty years. It is not a statutory provision, but an equitable application of the principle to cases long delayed. And if there have been great neglect and lapse of time, and great mutations of the property, the court will not lend itself to support such stale claims.” On appeal the decree was affirmed for the reasons given by the chancellor.
The general rule has come to be settled that in a suit iipon a bond, the lapse of twenty years without demand- or payment of interest will raise a presumption of payment, and in
In the case at .bar, we find that E. J. Buckmaster, the mortgagee, took a mortgage upon the undivided interest of Kelly in the real estate, to secure the payment of a promissory note of twelve hundred dollars, payable in four months .after date. This was in 1853. The mortgagee was evidently a man of some business capacity, and was apparently careful in the conduct of his affairs. He received mortgages upon other real estate in the .same locality for considerable sums —thousands of dollars. His mortgages were carefully drawn and placed on record. One, at least, of the mortgages was ■collected or foreclosed. Soon after the coming due of the Kelly note or mortgage, Buckmaster removed to Georgia, and we hear nothing more of the matter until a little over nineteen years afterwards the administratrix of tlie mortgagee is informed by Judge "Wheaton that the mortgage is of record and not cancelled. Forthwith she sets about searching for it among the papers of the deceased and fails to find it or any trace of it. She then remembers that she had at some time after her husband’s death seen a paper or papers marked, “ Papers in the business of Buckmaster, Timanus and Kelly,” or similar words. She had never opened them, for she does not know what papers they were. As Buck-master, Timanus and Kelly had formerly had business transactions together,'we cannot necessarily presume that this package contained a note and mortgage given by Kelly to Buckmaster. It is not shown that Buckmaster in his lifetime, took any especial care of these papers, and the administratrix, during seven or eight years of her administration
The most plausible, and indeed, under all the circumstances, the only reasonable solution is, that the Kelly note was paid. And the fact that Kelly, a very short time before the note became due, executed a mortgage upon the same moiety of the property to Mrs. Wooten for a larger amount, strengthens the answer of Wallace, and the testimony of-Judge Wheaton, in his impression that the .Buck-master mortgage was paid off out of the proceeds of the mortgage to Mrs. Wooten, and that' Judge Pearson (who collected a claim for rent against Kelly.) was the attorney for Mrs. Wooten, and also the attorney for. Mr. Buckmaster generally in his business. “ Erom the tone of the conversation,” Wheaton says, “ I was led to believe that a portion of the money-borrowed by Kelly from Wooten was used in payment of the Buckmaster mortgage, Pearson representing Wooten in'relation to that mortgage,” and “ Pearson represented Buckmaster generally in his business.”
Counsel for appellant insist that Wheaton, having, been contradicted by Mrs. Buckmaster and by Mr. Ledwith in regard to conversations had with them while Wheaton was
Mr. Justice Sutherland, delivering the opinion of the court in Jackson ex dem. vs. Sockett, (7 Wend., 94,) says that the statute of limitations having run on the note, and that statute being founded in part, at least, or, he might say, principally upon the presumption of actual payment, and the difficulty of proving it from lapse of time, though secured by mortgage, the jury may properly conclude payment, the mortgage not containing any covenant to pay, but being merely a security. This was concurred in by those eminent jurists, Chief Justice Savage and Justice Nelson. Without fully endorsing this doctrine, which has not been sanctioned in some other States, (see Belknap vs. Gleason, 11 Conn., 160,) it is a strong argument that the note nineteen years over due has been paid.
The third ground of error is, that the court decreed that a partition be made of the premises, and that one-fourth of the twelve acres, by admeasurement, be sold to satisfy the Lambeth mortgage, which is a mortgage of an undivided one fourth. The complaint upon the Kelly mortgage
We do not see how it is practicable in this suit, brought to foreclose a mortgage,1 to make a partition. A suit for partition should not be joined with one for a foreclosure. The manner of proceeding in the suits is entirely different in the matter of process, parties, pleadings, issues and decree. There are cases in whieh a decree should direct portions of an entire mortgaged property to be first sold in order to save equitable interests, as where a part of" the property has been purchased from the mortgagor subsequent to the execution of the mortgage, and this is a very familiar rule. The bill is defective as for a partition, because it fails to show who are all the parties interested in the entire tract, of land, and so does not lay a foundation for a final decree of partition. The decree binds only the parties before the court. ■ All the parties interested in the estate are necessary .parties in partition, and it is very evident that in foreclosing a mortgage upon an undivided share, the court cannot determine the rights of all the parties in the whole. Some of the defendants in this suit are even at issue between themselves as to their titles.
This suit was brought while the “code of procedure” was in existence, but it will be found that such a joinder of causes of action is not provided for. (See § 117.) The provision of the code on this subject is' substantially a repetition of the ancient rule. The practical difficulty is that the court cannot determine in one proceeding all the issues that must legitimately arise in both causes. The remedy by partition should precede the sale on a decree of foreclosure
■ It is claimed .that Wallace and other defendants have erected valuable mills upon the land, having purchased under the belief and upon legal advice that their title was good, and therefore they ask the protection of the court. - There need be no difficulty about this matter. The partition preceding the foreclosure would doubtless have thrown the mortgage upon that portion set off to thé mortgagor, and after foreclosure and sale the purchaser would stand in the right of the mortgagor as a tenant in common with other owners. If there be parties who have made valuable improvements upon portions of the property which may be set off in a partition, under circumstances which entitle them to protection, the court of equity will protect them. (1 Hilliard on Mortgages; 13 ; 10 John. R., 414; 1 Barb. R., 500; 2 Sandf. Ch. R., 98.)
The joinder of two causes of action upon the two mortgages, by the consolidation of the two suits, is somewhat anamolous. The mortgages are given by different parties, upon different shares or portions of the property ; the parties defendants in the suits have no common interests. There are several necessary parties in one case, and but one in the other. As the parties have consented to the consolidation, however, we leave them as we find them:
The decree of the court as to the Kelly mortgage is affirmed, except that if the mortgage be cancelled of record it should be done by an order directing the clerk to enter the cancellation. The decree as to the Lambeth mortgage is affirmed, except as to the proposed partition. The cause is remanded, with directions to the Circuit Court to reform the decree in accordance with this opinion. Each party will pay one-half the costs of this appeal, no costs besides disbursements to be included.