McMurray v. McMurray — 45 N.Y. St. Rep. 2

Majority

p. 2

Gerald McMurray, App’lt, v. Andrew McMurray et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Mortgage—Presumption of payment.

In an action of foreclosure the plaintiff produced a certified copy of the record of the mortgage, and it appeared that the mortgagor fifteen years before his death had delivered the bond and mortgage to the landlady of a hotel to keep for him, and that she sent the same to the widow on his death. Held, that the great lapse of time that the mortgagor remained in undisputed possession of the bond and mortgage, and the fact that no effort had ever been made to collect either principal or interest, created a strong presumption that the same had been satisfied.

2. Foreclosure—Evidence.

Testimony of the mortgagee as to whether any payment on the mortgage had been made to him by the mortgagor, now deceased, is inadmissible under § 829 of the Code.

Appeal from judgment dismissing the complaint.

Action to foreclose a mortgage, alleged to have been assigned to plaintiff by the mortgagee, The facts appear fully in the opinion.

On the trial the following questions put to the mortgagee were excluded:

“Have you ever been paid the consideration of the mortgage,” and “ Did you ever receive any money on account of that mortgage ? ”

Geo. F. Eschbach (G. A. C. Barnett, of counsel), for app’lt; Horace D. Hufcut, for resp’ts.

This action was brought to foreclose a mortgage .given May 26, 1873. by Bartholomew McMurray and wife to Andrew McMurray to secure the payment of $2,000 upon 26th May, 1878, interest to be paid annually, June 1, each year, at the rate of seven per cent A bond for such sum accompanied the mortgage with condition as above.

The complaint shows that the mortgagor and bis wife were •each deceased at the time of the trial and the defendants in the action were the children of the mortgagor. The mortgagor died three or four years since, and subsequently his wife died. The defendants are all infants and children of the mortgagors except defendant Edmonds, a tenant, and Richard Barrett, who is the grandparent of the infants and their general guardian.

It appears that Bartholomew McMurray was in the habit of .stopping at the New York Hotel, in the city of Poughkeepsie, and that some fifteen years or more prior to the trial (1891), he (the mortgagor) gave to Mrs. Gallagher, the landlady, some papers to keep for him. She kept them for fifteen years or more, and when she heard the mortgagor was dead sent them by mail to the mortgagor’s widow at Dover Plains, and when she died Richard "Barrett, her father, found them in the house. The mortgage and bond were in form assigned by Andrew McMurray, the original mortgagee, to Gerald McMurray, February 11, 1890, who is the plaintiff in this action.

The great lapse of time that the mortgagor had been in the undisputed lawful possession of this bond and mortgage, and that bo effort had ever been made to collect either interest or principal by the mortgagee, affords a very high degree of evidence that if the mortgage and bond ever had any validity it had long been .satisfied. Giles v. Baremore, 5 Johns. Ch., 545 ; Jackson v. Sackett, 7 Wend., 94 ; Hill v. Gayle, 1 Ala., N. S., 275; Levy v. Merrill, 52 Howard, 360 ; Jackson v. Pratt, 10 Johns., 387 ; Clark v. Hopkins, 7 id., 556.

The question put to the mortgagee clearly called for testimony .of a personal transaction with the deceased mortgagor, and fell within the prohibition contained in § 829 of the Code of Civil Procedure.

The evidence in this case points to but one conclusion, to wit, ■that the mortgagor and his wife being dead an attempt is made to collect this bond and mortgage from their children, who are assumed to be entirely ignorant of the circumstances surrounding the transaction.

The conduct of the mortgagee is utterly inconsistent with any honest claim in this suit. Bergen v. Urbahn, 83 N. Y., 49 . He had no bond and mortgage for fifteen years and never made any •claim for principal or interest during all this time, although, so far as appears, the mortgagor was amply responsible.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J,, not sitting.