33 N.J. Eq. 424 | New York Court of Chancery | 1881
The bill is filed to foreclose two mortgages on land in Trenton, given by David Coates to Louis Hargous, one, April 6th, 1854, for $200, payable in one year, with interest, and the other, January 15th, 1855, for $278, also payable in one year, with interest. Each mortgage was duly recorded in the month in which it was given. Hargous died in March, 1874. He held the mortgages at his death. By his will he gave the residue of his estate, of which residue the mortgages formed part, to Maria M. Hargous, who thus became the owner of the mortgages. , She was one of the executors. In March, 1879, she, being desirous of obtaining from Coates, who still owned the mortgaged premises, as he does yet, an acknowledgment that the mortgages (on which nothing' has ever been paid) were still unpaid and were valid securities, obtained Coates’s signature (which he appears to have given readily) to an endorsement on each of the mortgages and each of the bonds which they were respectively made to secure; that no part of the principal or interest had been paid from the date of the instruments, and that the whole of the principal and the interest from the date of the instrument was due and unpaid. Peter Hargous, the nephew of Maria M. Hargous, obtained Coates’s signature to the endorsements. He called on Coates with the bonds and mortgages for the purpose, and took James Cunningham with him. The latter swears that Hargous told Coates that he had the papers, and asked him if he was willing to sign them, and Hargous asked Cunningham to read them, which he
Both Coates and Walter contend that no suit for foreclosure can be maintained on the complainant’s mortgages, because, as they insist, they are, from lapse of time, presumed to have been paid. But the presumption of payment which arises in regard to mortgages from lapse of time, without payment of interest or demand made, is only a. presumption, and'it is one which may be rebutted.
Again, it may be remarked, that Walter’s mortgage was given, not to secure a loan, but to secure a precedent debt, which, he says, had run for a good while, it might have been for years; and though he says it includes a sum of money (he says he thiuks about $60), which he alleges he lent to Coates, that money was lent some weeks before the mortgage was given, and does not appear to have been lent on the security of the mortgage.
The complainant is entitled to a decree for foreclosure and sale, and his mortgages are entitled to priority over the mortgage to Walter.