Hall v. Thompson — 53 N.Y. St. Rep. 667

Majority

p. 667

Kate Hall, Adm’rx, Resp't, v. Franklin Thompson, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 8, 1893.)

Headnote

Mortgage—Payment.

In an action to foreclose a mortgage, the answer alleged that the mortgage was given to secure the payment ol' $100 to plaintiff’s intestate, and the balance to his brother. The brother testified to that effect on the trial, and that he had received his portion, and that decedent had admitted to him that he had been paid the $100. Pour other witnesses testified to statements, of the deceased to the same effect. Held, that a finding in favor of plaintiff for the full amount of the mortgage was contrary to the evidence.

Appeal from judgment of foreclosure and sale, entered upon report of a referee.

Dehour S. Potter, for app’lt; Charles P. Coyle, for resp’t.

This action was brought to foreclose a mortgage «executed by defendant to plaintiff’s intestate, Lyman Hall, on or about March 15, 1876, for $380. The defendant asserted in his 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 witness, 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

p. 668

sura ,of $230 to the witness; that deceased afterwards admitted to him the payment of the said $100, and that the witness has. 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 fifteen years without any payment of either principal or interest.. Although the action was not barred by the statute of limitations,, 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, as survivor, v. Palmer, 125 N. Y., 744 ; 36 St. Rep., 175 .

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.

Mayham, P. J., and Herrick, J., concur.