29 Barb. 435 | N.Y. Sup. Ct. | 1859
The revised statutes, (vol. 2, page 301, sec. 48,) provide) that “ after the expiration of twenty years from the time a tight of action shall accrue upon any sealed instrument, for the payment of money, such right shall be presumed to have been extinguished by payment; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period.” This provision is applicable1 to the present case ; as the right of action on the mortgage had accrued, and existed, when the code, in reference to
The mortgage in question was executed by Cornell to Amerman on the 1st of May, 1829, and was payable in two equal annual instalments, with interest. ■ Cornell executed a bond to Amerman, in connection with the mortgage. Amerman assigned the bond and mortgage to De Mott, on or before the 7th of May, 1831; and the latter, on the 1st of August, 1832, assigned the same to the plaintiffs. In 1837, Cornell conveyed the mortgaged premises to Clay, who conveyed the same to Cornelius V. Covert on the 31st of March, 1838 ; and the latter afterwards conveyed 98 acres of the premises to the defendant Sniffin, and to the defendant Isaac Covert about two acres. This action, the object of which is the foreclosure of the mortgage and the sale of the mortgaged premises, was commenced in August, 1853, the owners of the equity of redemption at that time, with their wives, only, being made parties defendants. The defendants, in their answer, set up as a defense, in substance, the payment of the bond and mortgage by Cornell to the plaintiffs. It is proved, that in addition to other payments previously, there was paid by Cornell to Amerman, on the 26th of May, 1830, §420 ; and that Cornell paid to the plaintiffs, November 5th, 1841, $100, and December 9 th, the same year, $200.
More than twenty-three years had elapsed after the last payment by Cornell, while he owned the equity of redemption, before the commencement of the action ; and unless the payments made by him in November and December, 1841, after he had parted with his entire interest in the premises, repel the presumption of payment of the mortgage debt, not only as to him, but as to persons claiming under him, through a prior conveyance, the mortgage must, by the direction of the statute, be deemed paid and satisfied, and the defendants must prevail in the action.
It does not appear whether Cornell assumed to convey merely his equity of redemption, making the land primarily
Such being the relation between Cornell and the defendants deriving title under him, it would seem to be inequitable and unjust to allow either, by any act or declaration, to affect the rights and interests of the others, in regard to the incumbrance, either .by a written acknowledgment of the debt, or by part payment. If Cornell might thus bind the defendants, they might equally bind him in the same manner. Such an acknowledgment, or a partial payment, ought to be a waiver of the statute benefit, and renew the debt from that time, only as to the party making the acknowledgment or payment. There is no difficulty in allowing as to one party, under the statute, a presumption of payment, and refusing it to the others. A presumption of payment is not like an actual payment, which satisfies the debt as to all the debtors; it operates as a payment only in favor of the party entitled to the benefit of the presumption. It may apply to the bond and not to the mortgage, or to the mortgage and not to the bond, according to circumstances. (Heyer v. Pruyn, 7 Paige, 465. Park v. Peck, 1 id. 477. Jackson v. Wood, 12 John. 242.)
The rule is now settled, that an acknowledgment and promise to pay a debt, or a payment, made by one of several partners after dissolution, or one of several joint and several debtors, will not revive or renew the debt against the others, in reference to the statute of limitations. ( Van Keuren v. Parmelee, 2 Com. 524. Shoemaker v. Benedict, 1 Kernan, 176. Winchell, ex’r, v. Hicks, 18 N. Y. Rep. 558.) Neither is authorized, from the mere fact of being liable for the debt, to prevent the running of the statute, or take the debt out of the statute as to the other debtors. Want of authority is the ground on which the rule rests.
T. R. Strong, E. Darwin Smith and Johnson, Justices.]
The same principle, I think, embraces the present case.’ Proof of payment of part, or of a written acknowledgment of the right of action, will repel the presumption of extinguishment by payment, only as to the party who has thereby recognized the existence of, .and his obligation and willingness to pay, the debt. As to other parties, it will have no effect. This is the fair constmctioirof the statute.
It was the proper mode of making a defense, under the statute in question, to allege payment. (Henderson v. Henderson, 3 Denio, 314. Fellers v. See, 2 Barb. S. C. R. 488. Giles v. Baremore, 5 John. Ch. 545. Austin v. Tompkins, 3 Sand. 22. Pattison v. Taylor, 8 Barb. 250.)
The judgment must be reversed, and a new trial granted; costs to abide the event.
