33 N.Y.S. 876 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment of the special term in favor of the defendant. The action is to foreclose a mortgage ; the defense, payment. The bond and mortgage were found by the plaintiff in the papers of her intestate shortly after .his decease, and before her appointment as administratrix. She called the defendant’s attention to the fact that she had found these obligations. The defendant, according to his testimony, responded that the bond and mortgage had been paid, and, if plaintiff examined her husband’s papers, she would find that to be the case, and that after this conversation the plaintiff brought the bond and mortgage, and delivered them to him. The plaintiff conceded the surrender of the bond and mortgage, but denied that she said that she had found they were paid. This is substantially all the evidence to support the plea of payment.
We think the judgment below erroneous.. The doctrine that the possession of the bond and mortgage by the mortgagor is presumptive evidence of their payment can have no application to this case, for it is conceded that the bond and mortgage were in the possession of plaintiff’s intestate at the time of his death, and there is no claim that payment has been made since that time. The defense of payment, therefore, rests solely on the act of the plaintiff in surrendering the mortgage, and her alleged admission that she had found, from her husband’s papers, that it had been paid. Had the transaction between plaintiff and defendant occurred after the plaintiff had been appointed administratrix, it may be that it would either have operated as a discharge of the mortgage, or constituted sufficient evidence to uphold the finding of payment. Church v. Howard, 79 N.