Majority
p. 86(70 Hun, 599; mem. report without opinion.) HALL v. THOMPSON. (Supreme Court, General Term, Third Department. July 8, 1893.) Argued before MAYHAM, P. J., and PUTNAM -and HERRICK, JJ.
Headnote
1. Mortgage—Foreclosure—Payment—Evidence.In an action commenced in 1891, by an administratrix, to foreclose-a mortgage for $330, executed in 1876, to run 15 years without-any payment of either principal or interest, decedent’s brother testified that the mortgage was given to secure a debt of $230 to him and $100 to decedent, that he had been fully paid, and that decedent had admitted to him that he had been paid. Four other witnesses testified to similar statements by deceased. Held, that a judgment for plaintiff was not supported by the-evidence.
2. Same.
A clause of such mortgage which states that it was given for the purchase money of the mortgaged property does not contradict the testimony of such witnesses, in the absence of proof that decedent’s brother had no-interest in such property, or the purchase price thereof, when it was conveyed to the mortgagor.
Appeal from judgment on report of referee.
Action by Kate Hall, administratrix of Lyman Hall, deceased', against Franklin Thompson, to foreclose a mortgage. From a judgment entered on the report of a referee in favor of plaintiff, defendant appeals.
Reversed.
Delcour S. Potter, for appellant. ,
Charles P. Coyle, for respondent.
This action was brought to foreclose a mortgage executed by defendant to plaintiff’s intestate, Lyman Hall, on or about March 15, 1876, for $330. The defendant asserted in bis answer that the bond and mortgage set out in the complaint were given to secure the payment of $100 to said deceased,- and the sum of $230 to his brother, John Hall, and further alleged payment in-full of said sums to said deceased and John Hall. The issues were referred, and the referee found in favor of the plaintiff for the-full amount of the mortgage and interest.
We are of the opinion that the. conclusions reached by the referee-are not sustained by the testimony given upon the trial, and that the judgment should be reversed on the evidence. ■ Defendant’s wit
p. 87
ness John Hall, the brother of deceased, who appears to be a banker and a reputable witness, testified that he drew the mortgage in. suit, and the accompanying bond. Said papers were given to secure a debt of $100 to deceased, and the sum of $230 to the witness. That deceased afterwards admitted to him the payment of the said $100, and that the witness had been fully paid the amount of the mortgage debt coming to him. Four other witnesses testified to statements by, or conversations with, deceased, corroborating the testimony of said John Hall. Such evidence, tending to show the payment of the mortgage, was strengthened by the lapse of time since the execution of the instrument. It was executed March 15, 1876, and the action was commenced in 1891. According to the theory of the plaintiff, which was adopted by the referee, the mortgage ran a period of 15 years without any payment of either principal or interest. Although the action was not barred by the statute of limitation, yet it is well settled that the lapse of time may be properly considered, in connection with other evidence, on a question of payment. Macaulay v. Palmer, 125 N. Y. 744 , 26 N. E. Rep. 912 . The evidence above mentioned, showing payment of the said bond and mortgage, seems entirely uncontradicted. The fact that the mortgage contained a clause stating that it was given for the purchase money of said property does not contradict the testimony given by John Hall or the other witnesses, in the absence of proof that John Hall did not own, or was not interested in, the real estate conveyed to defendant, and on which he executed the mortgage, or in the purchase price thereof. We conclude that the judgment should be reversed, on the evidence, and a new trial granted; costs to abide the event. All concur.