Hunt v. Gleason — 51 N.Y. St. Rep. 752

Majority

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Daniel Hunt, Ex’r, App’lt, v. Ellen Gleason et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Mortgage — Payment—Receipt.

In an action to foreclose a mortgage held by plaintiff’s testator the defense was payment, and defendants produced a receipt drawn by the mortgagor’s husband, and signed by testator. It was apparently drawn for a payment of interest, but the words "and principle $1,000 paid” were inserted just before the statement of the amount of interest in a cramped and different handwriting. There was testimony that after that date testator had conversations with others showing that the principal had not then been paid, and the mortgage remained in testator’s possession and came into that of plaintiff. Held, that the receipt was not sufficient to sustain a finding that the principal sum had been paid.

Appeal from judgment dismissing the complaint and directing that plaintiff deliver to defendant Ellen Gleason a satisfaction piece of the mortgage in question.

This action was commenced for the foreclosure of a mortgage made by Ellen Gleason and Charles A. Gleason, the defendants, to Harrison Hunt, dated December 1, 1886, given to secure one thousand dollars and interest at six per cent, per annum, and due on the 1st day of January, Í890, covering premises in the town of Rye, county of Westchester, New York. Harrison Hunt, the mortgagee, died April 6, 1888, leaving a last will and testament, and Daniel Hunt, the plaintiff herein, was made his executor and duly qualified as such. He found' among the papers of Harrison Hunt, after his death, the bond and mortgage sought to be foreclosed in this action. In March, 1890, the plaintiff commenced a foreclosure of said mortgage, and the defendants, Ellen Gleason and Charles A. Gleason, answered, claiming that on the 1st day of January, 1888, the defendant, Ellen Gleason, paid the principal and interest of said mortgage in full to Harrison Hunt. The court found that the bond and mortgage referred to in the complaint were in the possession of the deceased at the time of his death, and came into the possession of plaintiff as executor subsequent to the death of decedent. The court found that Ellen Gleason and Charles A. Gleason in the mortgage agreed to pay unto Harrison Hunt, or his executors, etc., the sum of money and interest as mentioned in said mortgage. That the defendants paid the interest upon the said bond and mortgage up to and until the 1st day of January, 1888, and no more. The court also found that the defendant, Ellen Gleason, on the 1st day of January, 1888, paid to Harrison Hunt sixty

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dollars as interest and one thousand dollars as principal, in full of all claims and demands upon the said bond and mortgage.

The court found, as a conclusion of law, that the complaint should be dismissed and the mortgage satisfied.

Arthur T. Hoffman (John H. Clapp, of counsel), for app’lt; L. C. & W. P. Platt, for resp’ts.

Ellen Gleason, on the 1st of December, 1886, executed and delivered to Harrison Hunt, now deceased, a mortgage for $1,000 on real estate owned by her in Westchester county. The plaintiff, as the executor of Hunt, brings this action to foreclose the mortgage. He claims the entire principal with interest thereon from January 1, 1888. The defendants aver payment of the bond and mortgage, principal and interest, to Harrison Hunt in his lifetime. They produce a receipt given January mortgage, principal and interest. j.ug ijubhuu as to the reality and genuineness of this receipt. It purports to be signed by the deceased owner of the mortgage, and he died in April, 1888, The bond and mortgage remained in his hands until his death, and passed into the possession of the plaintiff as his executor. The mortgage was not, by its terms, due as to the principal until January 1, 1890, but it was proven that the mortgagee promised to take the money at any time. The receipt is drawn by the husband of the mortgagor, and there is sufficient proof as to the genuineness of the signature of the deceased Mr. Hunt. The receipt is unusually drawn, and cannot be explained with the other evidence in the case. On that day the interest was credited by the parties upon a blacksmith bill held by the mortgagor’s husband. The receipt is drawn as if to express a payment of interest only. It is particular and precise as to the payment of interest from January 1, 1887, to January 1, 1888. At the end in a cramped hand is added, “ and principle of $1,000 paid.” This addition is made by inserting it before the conclusion of the receipt for interest; “ $60 interest ” follows it. On the 8th of February, a witness, Crothun, states that the deceased said : “ We have just been settling up a mortgage.” The mortgage had then been paid over a month if the receipt is true. Another witness, Myers, heard the deceased say two weeks before his death that Gleason had paid him a lot of money, and he had gone on a two weeks spree in Hew York. This brings the payment near the middle of March, 1888. Another witness, Hennessy, proves an admission as to the payment made by Hunt on the 8th of April, 1888, and his evidence tends to show it was paid on that day, and was in Hunt’s pocket in bills at the time. Another witness, Verder, says little more than that the Hennessy incident was on the 8th of February, 1888. 1, 1888, purporting to evidence

The receipt is adapted to an admitted payment of sixty dollars interest, and to nothing else. The addition of words, “ and principle $1,000 paid,” is out of place; it is cramped in a receipt made for a payment of interest only, and is, although written by

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Mr. Gleason, written in a different and finer handwriting from the other part of the receipt. The receipt, if given on the 1st of January, 1888, is at variance with the several conversations showing the non-payment of the principal as late as February 8, 1888, and near the middle of March, 1888. The continued possession of the mortgage by Hunt, deceased, is' a very strong cii’cumstance against the payment of the principal, $1,000. The defendants knew how to do the business ai'ight, for they had paid a previous mortgage, and had taken a satisfaction piece for the cancellation of the mortgage.

There should be a new trial, with costs to abide the event

Pratt, J., concurs; Dykman, J., not sitting.