Goodwyn v. Baldwin, 59 Ala. 127

59 Ala. 127 | Ala. | 1877

STONE, J. —

In McArthur v. Carrie, 32 Ala. 75, the question of lapse of time and long acquiescence was pretty fully considered. Many authorities were cited; and some of them commented on. The principle there asserted has been followed, and has become a rule of decision in this court. — See Austin v. Jordan, 35 Ala. 642; Coyle v. Wilkins, 56 Ala. 108. The substance of the principle is, that if parties allow twenty years to elapse without taking any steps to compel a settlement, or to assert rights of property, the presumption of payment, or settlement of the disputed title arises. We have no disposition to re-examine the grounds on which that principle rests.

The bill in the present case was filed in July, 1877, to foreclose a mortgage on real estate executed by Frederic Raoul in May, 1844, to secure a debt due January 1,1845. The bill avers a payment of interest was made in 1846; and that since that time, no payment has been made on the debt. The mortgaged premises have all the while been in the possession of the mortgagor, and those claiming under him. The bill further charges that all the lands embraced in the mortgage have heen sold and conveyed away — partly by Raoul in his lifetime, and the residue by his devisees since his death; and that the purchasers are in possession. The bill does not charge that such purchasers owe any purchase money for the lands, and it does not charge the purchasers or any of them with actual notice of the existence of the debt or- mortgage. It relies alone on the constructive notice given by the due proof and registration of the mortgage, made in June, 1844, and in the proper county.

To avoid the effect of so great lapse of time, the bill contains the following averments: “ That said Frederic S. Raoul admitted up to his death [in 1870] the existence of said mortgage as a valid incumbrance on the lands therein conveyed, and at no time denied the existence of the same. That the said Frederic Raoul was, from the time of the execution of the said mortgage, and up to his death, in straitened financial circumstances — virtually insolvent — and that any attempt made by the beneficiary of said mortgage deed of trust to enforce said mortgage, would have resulted in the absolute ruin, or great financial distress of said Raoul, mortgagor, who was the brother of said beneficiary. . . . But that now, so it is, may it please your honor, your orators knowing that financial ruin has in fact overtaken the estate of said mortgagor, and that family affection and consideration are no longer excuses for not enforcing their said security, your orators ask your honorable court to enforce said security by a foreclosure of the said mortgage.” The plain import of this averment is, that so long as the mortgaged premises served and could serve the comfort and maintenance of Raoul and his family, the mortgagees were unwilling to disturb them. But that now, when the family have ceased to have any interests to be affected, the mortgagees desire and seek to have the lands subjected, although they thereby take them from purchasers the bona fides and payment of whose purchase, the bill no where denies. In fact, the averment that the Raoul devisees have no longer any interest to be affected by the foreclosure, is equivalent to an admission that nothing is due them from their vendees.

We do not think either or both of the above excuses are sufficient to overcome the presumption of settlement or payment of the debt, from the lapse of time. Much more than twenty years — in fact, over thirty — had elapsed since the last payment on the debt, before this bill was filed. The bond, recited in and secured by the mortgage, is not exhibited to the bill, nor averred to be in existence. “ That said Raoul admitted up to his death the existence of said mortgage as a valid incumbrance on the lands therein conveyed,” is a very vague averment. When, where, to whom, and how often admitted, the bill fails to show. Such averment is too indefinite to overcome the presumption of payment, even if Raoul alone was adversely interested. By a much stronger reason -is it insufficient to charge his vendees, who are impliedly admitted to be purchasers for value actually paid, and who are no where charged to have had knowledge that Raoul “ admitted the existence of said mortgage as a valid incumbrance on said lands.” If, by the registration of the mortgage they were constructively notified of the lien and incumbrance it created, it also notified them by its date and age that the law presumed the payment of the debt it was given to secure. — See Coyle v. Wilkins, supra.

It is not shown that motion was made for leave to amend the bill; and we need not consider whether it could have been amended, so as to cure the defects above pointed out.

Decree of the chancellor affirmed.