Lowe v. Leary

Headnote

Lowe v. Leary, 184 App. Div. 421 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 26, 1918, which reversed an order of Special Term confirming the report of a referee: The action was in partition. The judgment provided that the referee should retain out of the proceeds of the sale the sum of $8,000 to cover principal and interest of a certain lost mortgage which was unsatisfied of record. Thereafter the referee was directed to hear and determine all questions relating to said mortgage and to determine the manner of distribution of said fund. The referee reported that the circumstances surrounding the keeping and disappearance of the bond and mortgage gave rise to the inference that the principal and interest had been paid. The Appellate Division held that the mere disappearance of a bond and mortgage did not give rise to a presumption of payment; that as there was no presumption of payment and twenty years from the date of the last payment of interest had not elapsed there was no presumption that the debt was satisfied; that the bond and

mortgage may have been lost, inadvertently destroyed or given to some third person; that under these circumstances, the referee should be directed to pay the money into court to be held until the 8th day of March, 1922, unless in the meantime proper evidence be given to enable the holder of the bond and mortgage to receive the same, and that upon the expiration of said period the said sum, with any interest that may have accumulated thereon, shall be paid over to the persons to whom the proceeds of the sale were distributed under the final judgment and in proportion thereto.