138 Mich. 396 | Mich. | 1904
December 20, 1873, James Carr made a mortgage to his brother, Hugh Carr, the defendant, for the sum of $1,400, due seven years from date, with interest at 10 per cent, per annum. April 15, 1902, James Carr died intestate, leaving the complainants, Mary E. - Carr, his widow, William Carr, his son, and Eva Elwell, a daughter, as his only heirs surviving. November 20, 1902, defendant commenced foreclosure of the mortgage
Defendant answered, denying the mortgage was barred by the statute of limitations, and by way of answer in the nature of a cross-bill asked that the mortgage be foreclosed in accordance with the usual practice of foreclosing mortgages in chancery.
The case was heard upon pleadings and proofs in open court. A decree was made dismissing the complainants’ bill, and granting a foreclosure on defendant’s cross-bill for the sum of $550, with interest at 10 per cent, from November 29, 1901, with costs in favor of the defendant. The defendant claims there is due upon the mortgage $5,694, and has brought the case to this court by appeal. The complainants have not appealed.
The record shows that about 1876 Hugh Carr returned to Ireland, and has never been back to this country. It was the claim of complainants that a day or two prior to his leaving James Carr paid to him $500 or $700 to apply on the mortgage; that October 19, 1881, he sent him $100 for the same purpose; and that he never afterwards made any payment, and that the statute of limitations had run against the mortgage. It is the claim of defendant that only one payment has ever been made to him, and that was of $100, made about 14 years before the deposition of Hugh Carr was taken to be used upon the trial. In his disposal of the case the trial judge said he did not think the statute of limitations had run against the mortgage, and in his opinion said, among other statements:
“The testimony as to the number and amount of the payments made upon the mortgage are conflicting, and, excepting as to one payment of $100, made in 1881, unsatisfactory. It appears from the evidence that the defendant went to Ireland in 1876, and has never returned to this country. It is also shown that he made numerous
He thought it proper this agreement should be enforced, ¡and made the decree as before stated.
Section 9725, 3 Comp. Laws, reads:
“No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall become due and payable, or within fifteen years after the last payment was made on said mortgage: Provided, however, that this act shall not be construed to apply to mortgages which have been due fifteen years ' or more, or the last payment upon which was made fifteen years or more prior to the passage of this act, but in all ¡such cases no suit or proceedings shall be maintained to foreclose the same unless commenced within five years after this act shall take effect.”
The defendant insists that, as the trial judge found the ¡statute of limitations had not run against the mortgage, ¡and as complainants have not appealed, that question cannot now be considered by this court. This position undoubtedly states the general rule, but defendant is seeking •affirmative relief by an answer in the nature of a cross-bill. He is not content with the relief granted to him in the •court below. He says, instead of having a decree for something more than $500, he should have one for more
On the 23d of January (blank year) Hugh Carr wrote his brother:
“i think that you might be ashamed all this time and not paid any if you done any thing you might a had every cent of it payed.now twelve or thirteen years and never tried to pay any thing, their must be something the matter you dont care one straw how i get on now look at the interest and all you surely could have paid the interest every
On January 28, 1892, he wrote him:
“James you spoke of money matters and I think that it was near time in 15 years that you could do nothing you might had every farthing paid and could if there had not been something wrong you did not care how i got along if you were all right, sometime i thought of going to Belfast and giving it into the hand of the Queens Counceler, and other times i thought of going over to you but you spoak as you were going to give me some, if you send me the 16 hundred and send me fifty pounds a year i will forgive you all the interest and when you count that up that is a good deal.”
In our opinion, these letters are utterly inconsistent with the idea that a payment had been made about the year 1889 as testified to by Hugh Carr. Hugh Carr’s testimony is supported by the testimony of his wife to the effect that she saw the draft, and read the letter in which it came. The time when this occurred is not stated by defendant, but is said to have been about 14 years before their depositions were taken. Both these witnesses also testified that James had frequently acknowledged the debt in letters which he sent. None of these- letters were produced, and it was claimed they were destroyed. The testimony of Hugh Carr was incompetent under the statute. It related to matters which, if true, must have been equally within the knowledge of his dead brother. His wife never saw James Carr, and never saw him write. She did not possess the requisite knowledge to enable her to testify to his handwriting. Taking the record as we find it, we think it clear the last payment on this mortgage was made in 1881.
It is said, however, that the letters written by James Carr are sufficient to take the mortgage out of the oper
“ Now James i give this last chance if you send me one hundred pounds and gives John Mcomb ten pounds i forgive you all the rest, that is not one third you owe and if not i will fight to the end.”
In the following November James wrote:
“wel hugh you made me a proposal to settle up with you and i have made maind for to myself except if you send the mortgage hear as soon as you have a mind to and have it already for discharge and you will have your money and that will end it up send it to John Kerr or any lawyer or any one you have a choice and i will try and settle up with you and John Mcomb at once and do it as quick as you can for i want it done with as i dont nowe How soon something may happen so do it right off.”
Then followed other correspondence relating to a settlement upon the basis of £100, which correspondence was terminated by the death of James. Even if the promise to pay in writing would take the case out of the statute, it will be noted there was no such recognition of the entire amount claimed and a promise to pay it as would prevent the running of the statute.
As the complainants have not seen best to appeal from the amount of the decree, it will be affirmed, with costs of this court in favor of complainants.