55 Vt. 535 | Vt. | 1883
The opinion of the court was delivered by
The defendant, upon the court’s intimating what its ruling would be on certain matters involved, declined to go to the jury upon any disputed fact. He thereby admitted that all which the plaintiff’s evidence tended to establish was proven. The court thereupon directed a verdict for the plaintiff, to which the defendant excepted. This exception does not bring into contention the ruling intimated by the court. No exception was saved in regard to that. It only saves to the defendant the right to contend, that if all the plaintiff’s evidence tended to prove was true, he was not
I. But if the question of fraud is not open to the defendant, he contends there was no sufficient proof of the existence of any mortgage debt due the plaintiff when he took possession of the mortgaged premises. The plaintiff introduced evidence tending to show the execution of the mortgage deed and of the notes secured thereby, and produced them in court. As the notes were overdue, when produced, the defendant contends that the presumption of law is, that they were paid when they fell due, although found in the hands and possession of the payee uncancelled. We do not understand that such is the presumption of law. A promissory-note is written evidence of indebtedness made and delivered by the maker to the payee. The purpose of making and delivering the note, is that the payee may have written evidence of such indebtedness. So long as it continues in the possession of the payee uncancelled, the law regards it as evidence of such indebtedness. When, therefore, the plaintiff produced the mortgage deed and the notes, uncancelled, in court, and proved their due execution, he produced sufficient evidence to establish prima facie the existence of the indebtedness witnessed thereby; he produced the identical evidence of such indebtedness, which had been furnished him by the maker. Against such evidence no presumption of payment arose from the fact that the day of payment had passed. Payment, under our statute and at common law, is a matter of defence, to be established by the defendant. No presumption of payment arises from the lapse of time, after
II. The defendant contends there was not sufficient evidence of a change of possession of the property attached by the defendant to uphold the action of the court in directing a verdict for the plaintiff. The, plaintiff’s evidence tended to show that he took possession of the mortgaged premises under his overdue mortgage, and ciit and gathered the hay and oats which the defendant attached as the property of the mortgagor. The law day having run upon the mortgage, the title to the premises, at law, became absolute in the plaintiff. He took possession as the legal owner. The growing crops were his, as much as the land on which they were standing. Whatever may be the legal character of annual crops, there cannot be any doubt but they pass with the land to a purchaser who takes the title and possession of the land while they áre still standing upon it. A mortgagee who takes possession of the mortgage premises under his mortgage for condition broken, is such purchaser. At law he is the absolute owner in possession. In equity also he is the owner of the crops growing, and to be grown by him upon the premises while in possession, and only accountable to the mortgagor for the rental value of the premises, on the redemption thereof. It is true .that such crops belong to the mortgagor who is allowed to remain in possession, and severs such crops. This is all that is decided in Cooper v. Cole, 38 Vt. 185, relied upon by the defendant. Although the plaintiff in that case had foreclosed his mortgage, he had never taken possession under it, but had agreed with the mortgagor that he should foreclose, but that the mortgagor should still have the
The judgment of the County Court is affirmed.