28 N.J. Eq. 55 | New York Court of Chancery | 1877
The complainant, in 1843, tvas indebted to the firm of John D. Cocks & Co., in the sum of $345.59, and, being financially embarrassed, he applied to the defendant,. Josephus Sooy, Jr., his brother-in-law, for aid, and requested him to pay that debt for him, offering, if he would assume the payment of it, to transfer to him, as security, certain promissory notes and hook accounts belonging to the complainant, and to convey to him, by way of mortgage,' as additional security, certain land owned by the complainant in the county of Burlington.
Mr. Sooy, in accordance with the request, agreed to assume the payment of the debt, and the complainant then assigned to him the notes and book accounts, and conveyed the land to him by deed dated October 2d, 1843. Cotemporaneously with the delivery of the deed to him, Mr. Sooy executed and delivered to the complainant a defeasance, under his hand and seal, in which it was recited that he had
The bill prays an injunction. It prays, also, an account from Josephus Sooy, Jr., of the moneys collected by him from the notes and book accounts, and of the moneys paid by him for the complainant, and that he may be decreed to pay the overplus, if any, and convey the land to the complainant, who tenders himself ready to pay any sum which, on the accounting, may appear to be due from him, and prays that he may be permitted to redeem the property by such payment, if necessary.
If the complainant is right, he owes Sooy nothing. If the latter is right, he owes him about $860, with the interest upon it for thirty years. And, though at the time of the transaction the parties were brothers-in-law (Downs having married the sister of Sooy), yet, for about twenty-six years of the time, there has been no family consideration to prevent Sooy from claiming his money from the complainant, for the latter’s wife, above referred to, died in 1850. There is no evidence whatever of any claim on the part of Sooy upon the complainant for, or in respect to, the money paid to John D. Cocks & Co. Uor is there any evidence that any reason or consideration whatever restrained him from demanding the money in question. For thirty-three
It appears in evidence that, from five to ten years ago, the complainant requested Sooy to reconvey the land, and 'that he has in vain requested Sooy to settle with him, the complainant alleging that Sooy has, since 1848, owed him a large sum of money for the price of land sold under an execution in the complainant’s favor, issued out of the circuit court of the United States for the district of New Jersey, and purchased by Sooy, and conveyed to him by the marshal, and for the purchase money whereof he has never accounted to the complainant, although he ought to have accounted, and agreed to account to him therefor. Josephus Sooy, Jr., has neither been sworn himself, nor has he offered any testimony in the cause. Under the circumstances, the complainant should have the benefit of the presumption of payment. “ Presumptions,” said Sir William Grant, in Hillary v. Waller, 12 Ves. 239, 252, “ do not always proceed on a belief that the thing presumed has actually taken place.” The presumption of payment, in case of a .mortgage on which nothing has been paid for twenty years, and there has been no 'foreclosure, and the mortgagee has had no possession of the mortgaged premises, arises from the policy of the law. Were the complainant before the court in a suit brought against him to foreclose this mortgage, the presumption of payment would be his protection against the stale and doubtful claim. It is difficult to find any reason for denying him the full benefit of
The complainant is entitled to a reconveyance, and consequently to a perpetual injunction against the judgment creditor.