52 How. Pr. 360 | N.Y. Sup. Ct. | 1876
— The bond, the payment of which is secured by a mortgage, is dated the 15th day of November, 1864. By the condition written in the bond, $1,000 was to be paid upon the 1st day of May, 1865, and the further. sum of $1,000 on the 1st day of August, in the same year. The bond bears a receipt, dated the 11th day of January, 1865, acknowledging a payment thereon of $1,000, signed by the husband of the mortgagee, who it appears was her agent in
The above facts raise a reasonable presumption that the bond and m rtgage are paid, and unexplained justify the position taken by the children, that the mortgage should be satisfied of record. A witness is also produced by the plaintiffs, who testifies that in April, 1865, he went with Morris Hartz, one of the mortgagors, to the store of the husband of the mortgagee, and that then and there the mortgagor paid the husband of the mortgagee a sum of money, and received from him a bond and mortgage; that the payment made was spoken of as a last payment, and that Morris Hartz said, “ I want my mortgage paper,” and the same was delivered to him.
To meet this case, the husband of the mortgagee swears, that but one payment has in fact been made upon the mortgage, viz., that of January, 1865. That at the time said payment was made, he not only receipted the same on the bond,
There are circumstances which greatly weaken the position of the husband of the mortgagee and herself, with respect to this claim, that the mortgage is unpaid, and these may be stated shortly as follows: Before this suit was commenced, the plaintiffs, with a notary public, called upon the mortgagee and demanded a satisfaction of the mortgage. She declined in the absence of her husband to execute the same; but then made no claim that the mortgage was unpaid; eontrarywise said, she supposed it was settled, but referred the parties to her husband. I think if the mortgage had been taken from her husband in the manner he now claims it was, and the same was in fact unpaid, that she would probably have been advised of the fact, and would have had some information upon a subject in which she had a direct pecuniary interest; and especially so, when so much time had elapsed since the mortgage by its terms became due and payable. When called upon for a satisfaction, the husband of the mortgagee did say that the mortgage was unpaid. But he made no claim that the mortgage had been delivered by him to one of the mortgagors, under the circumstances stated
The notary testifies that he supposed there was a receipt for the remaining $1,000, and so stated to the husband of the mortgagee, and that he also told him that he should know whether it had been paid; and that the husband of the mortgagee said if a receipt was produced, he would satisfy the mortgage. Bow in such a discussion, at that time, it would seem that the husband of the mortgagee would, if the fact was truly so, have made a claim that he had been, in fact, defrauded out of the possession of the mortgage. It was useless to say if a receipt was .produced he would satisfy it, when he well knew no such receipt was in existence.
The delay of the mortgagee in making any claim, and only interposing same when affirmative action was taken by the heirs of the mortgagors, for the satisfaction of the mortgage, is unfavorable to the claim of its non-payment. It is true that the husband of the mortgagee says, that when he failed on request to obtain a restoration of the mortgage, he consulted a lawyer, who is now dead, and that this lawyer advised him that no steps were necessary, as the mortgagor could do nothing with the mortgage, and that the matter would come out by and by.
This statement is not an entirely satisfactory explanation of an omission, to take action in the premises, for a period of over ten years. It is also unfavorable to the position of the mortgagee, that this distinct claim was not interposed in an effective way in the life time of Morris Hartz, who was the person best qualified to make any contradiction of the
Upon a review of the whole evidence, and upon the most careful consideration, I am compelled to the conclusion that the mortgage is paid. This result is only reached by a rejection of the defendant’s claim, and the evidence by which it is attempted to be supported. It is a painful duty in this way tq set aside the evidence adduced in. support of the defendant’s position; but I am of opinion that all the presumptions and suggestions of what is both probable and reasonable, under the circumstances of this case, unerringly lead to the conclusion, that the mortgage is paid and should be satisfied. Why should the husband of the mortgagee place in the hands of the mortgagor, the debtor of his wife, with permission to take away the only evidence of the debt, for the purpose of showing a stranger that a payment had been made upon it, when he held in his hand a receipt acknowledging that payment ? Why should he give the mortgage, as well as the bond, when it was the latter paper only which bore the evidence of payment % And when, after the lapse of years, the party to whom the papers were delivered being dead, and his children asking for a satisfaction, should he refrain from promptly asserting what he claimed to be facts, which would explain the manner in which the mortgage had come to their father’s possession, as a reason for his refusal to satisfy same, and aver his readiness to execute a satisfaction, if a receipt was produced when he knew no receipt had been given ?
These questions naturally arise from a consideration of the case, and no satisfactory answer can be found in the evidence or in reason. The remaining question is, can this action to compel a satisfaction be maintained % The heirs have conveyed the lands covered by the mortgage to a third party, but the purchaser has withheld an amount of the purchase-money sufficient to pay the amount claimed to be unpaid
The rule is, without doubt, that a person who has no longer any interest in the land, cannot maintain an action to remove an apparent lien upon the land, on the ground that it is a cloud upon the title. I am referred, by the counsel for the plaintiff, to the case of Townsend v. Goelett (11 Abb Pr. R., 187), as decisive against the plaintiffs’ right to maintain this action. That case is clearly distinguishable from the present. It was there held that a grantor who has no longer any interest in the land, cannot maintain an action to remove an apparent lien thereon, on the ground that he agreed with his grantor that he would procure the lien to be discharged. The incumbrance sought to be removed was a judgment, not against the plaintiff, but against a third person. The plaintiff was in no way privy, party to, or connected with the judgment, nor as between him and the judgment creditor was he bound to pay it. Hot holding a title to the land, the plaintiff had agreed to procure the land to be discharged from the lien. Such agreement did not authorize him to maintain an action against the judgment creditor for the removal of the lien.
In this case there is privity between the plaintiff and the mortgagee. Runill agt. Keller (60 Barb., p. 617), to which I am also referred, decides only that a party cannot maintain an action to remove a cloud from the title to land in which he has no interest, upon the sole ground that he has warranted the title. That is not this case. But this last case suggests that if the action was for relief against a bond, accompanying a mortgage, claimed to be cloud upon the title, and by which he was endangered, he might, upon sufficient allegations, be entitled to relief through “ quia timet.”
The money part of the consideration arising from the sale in the trust company, represent pro tanto the land, and by the claim under the bond and mortgage, and its outstanding record, is locked up. Plaintiffs, as long as this claim and record are made and unsatisfied, cannot reach this money. I cannot see but that the plaintiffs are practically without remedy in the premises, unless this action be maintainable. The mortgagee has for ten years refrained from taking any proceedings to enforce it, and upon application has refused to execute a satisfaction.
If the defendant has, in truth, any claim under the mortgage, she can assert it here as she has done under her answer.
I can conceive no better way in which the matter may be determined than in this action. The other cases and authorities to which I have been referred I do not regard as against the plaintiffs’ right to sustain this action. The bond being in fact paid, as is above decided, the plaintiffs are entitled to judgment, that the defendant upon presentation execute a satisfaction of the mortgage, and that the bond be adjudged to be satisfied and paid, and the record of the mortgage be effectually discharged.
That the plaintiffs recover their costs of this action.