p. 314Catherine A. Anderson, Individually and as Executrix, etc., Resp’t, v. Weeks W. Culver et al., App’lts.(Supreme Court, General Term, Second Department,Headnote
Mobtgase — Fobeclosube — Payment — Pbesumption — Possession of bond.In an action to foreclose a mortgage, the inference of" payment arising from the possession of the bond by the purchasers of the mortgaged ¿remises is rebutted where there is no proof as to whom or when payment was made, no proof that the mortgage was cancelled, or that any satisfaction piece was executed, and no explanation offered to show why the answer was so altered as to make it appear that payment was made to some one other than the plaintiff.
Appeal from a judgment of foreclosure and sale entered upon the report of a referee.
Sullivan & Cromwell, for app’lts; Shipman, Barlow,. Larocque & Choate, for resp’t.
Weeks W. Culver, one of the defendants, on the 1st of July, 1881, executed a mortgage to the plaintiff to secure a loan to him by the plaintiff of $6,000. The mortgage was upon lands in Kings county and was recorded 6 th of July, 1881. The interest was payable half yearly. On the 31st of July, 1883, Culver sold the lands to the defendants, Thompson & Norris, for $10,000, and they assumed the payment of the principal sum secured by the mortgage and agreed to pay the same. This deed was recorded on the 2d of August, 1883. The plaintiff commenced this action to foreclose the mortgage, claiming the entire payment and the interest from July 1, 1886.
Upon the trial, the defendants, Thompson and Norris, produced the bond which accompanied the mortgage, and
p. 315the sole question is whether the presumption of payment arising from its provisions is rebutted by the proof. There were two answers, one put in by Culver and the other by Thompson & Norris. The Culver answer avers payment, and tliat the mortgage was “fully satisfied and discharged and canceled of record.” The Thompson & Norris answer avers that “they paid to the plaintiff the whole of the balance money and interest thereon,” and that they received a satisfaction piece, which was filed in Kings county on the 10th of April, 1886, which was the day of the payment. The defendants rest entirely upon the production of this bond. No proof is given of the cancellation of the mortgage, and it must be assumed that it is uncancelled of record. The defendants, Thompson & Norris, on the trial, amended their answer by striking out the words in their answer that the payment was made “ to the plaintiff.” No information is given as to when the payment was made. There is evidently something which Thompson & Norris could make more definite in respect to this payment and which is withheld. The payment presumably was made to the plaintiff under the amended answer. To whom was it made? The bond has been withheld. The back on which would appear the indorsements of interest or of principal, has been detached, and a new back without a mark upon it, substituted. This new back was part of one apparently used by the plaintiff’s attorney, for the firm name is written and printed thereon. No explanation is given. Thompson & Norris, or some one for them, can explain where and how this payment was made. Was there a satisfaction piece, and where is it? Who made the satisfaction certificate?
If the plaintiff executed it, why is the answer altered so as to justify an inference that the payment was made to some one other than the plaintiff? In case she signed it the payment was made to the plaintiff. Thompson & Norris had the power to state the facts, and their omission to do so justifies an inference against their claim. Under the case as it now stands the inference of payment arising from the production of the bond is rebutted, and the judgment should be affirmed, with costs.
Dykman, J., concurs.