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In re Townsend

11 N.Y. Sup. Ct. 31 Court N.Y. Sup. Ct. English

Delivered by Brady, J.:

Contents

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p. 31
In the Matter of the Petition of MARY A. TOWNSEND, Appellant.

Headnote

Mortgages—discharge of, from record under statute — chap. 365, of 1862 — chap. 798, of 1868—chap. 551, of 1873.
Chapter 365, of 1862, as amended by chapter 798, of 1868, as amended by chapter 551, of 1873, is designed to remove an existing incumbrance upon real estate, which has been paid in fact and not by mere presumption of .law.
When a remedy is given by statute all the requirements imposed by it must be complied with.
Appeal from an order of the Special Term, denying an application to have a mortgage discharged of record.
Samuel N. Stubbs made a mortgage to Hiram Parker, dated June 22, 1838, and recorded June 26,1838. Parker assigned said mortgage to Campbell, September 4, 1838, and Campbell assigned it to Mary Spingler the same day. Both assignments were duly acknowledged and recorded, November 24, 1838. Mary Spingler died • intestate in or about the year 1839, and no administration was
p. 32
had on her estate. The respondent is the next of kin and heir at law of Mary Spingler. Stubbs conveyed the property to the appellant. On appellant’s petition stating these facts, and that the mortgage had been paid, an order was made calling on all persons interested to show cause why an order should not be made discharging said mortgage. The respondent showed cause upon an affidavit denying that the mortgage was ever paid, and averring that interest was paid to December 22, 1839, and that no payment of principal or interest had been made since that day.
John Townshend, for the appellant.
Edward Mitchell, for the respondent.

The act of 1862, to authorize the discharge of mortgages of record in certain cases,[5] and the amendment thereof by acts of 1868[6] and 1873,[3] are designed to remove an existing incumbrance which has been paid in fact, and not by mere presumption of law.

It is required, among other things, that the petition “ shall allege that such mortgage is paid ; ” not alone that twenty years having elapsed it is presumed to be paid, but that it is paid. The object of the statute seems to have been to relieve mortgagors and those claiming under them, in a summary way from an incumbrance which, as stated in the first section of the act, supra, from the lapse of time, is presumed to be paid, if it have in fact been paid, but satisfaction of which cannot be obtained without a formal pro- , ceeding therefor, in a court of equity, in consequence of the death of the mortgagee, and of the fact that no letters testamentary or of administration have been granted in this State. The petition must allege that the mortgagee has been dead for more than five years,- and that °the letters mentioned have not been granted.[4] It is true that the acts also require a statement of the assignment, if one have been made, and the “ facts in regard to the same,” without exacting an averment that the assignee is dead; but that does not destroy this general design of the statute. The chief object of requiring the statement of the assignment, is to enable the court to

‡ ‡ Laws 1873, p. 862.

§ § Sec. 1.

p. 33
have all persons interested notified of the application in accordance ' with section 3 of the act. Whether there be an assignment or not, however, the court must be satisfied that all the matters alleged in the petition are true.[5] Satisfied of what ? The prin-cipal fact is the payment of the mortgage. It must, as shown, be alleged that it is paid. It is not proved in this matter that the mortgage is paid. The evidence is that it is not, except by presumption of law, which is not sufficient on this summary proceeding.

The statute under consideration relates to mortgages presumed from lapse of time to have been paid, but it requires, as already shown, an allegation, and, therefore, proof of payment. The principle is well settled, that, where a remedy is given by statute, all the requirements imposed by it must be complied with.[6] Here the petitioner fails in the most important allegation, the-one indeed upon which the whole application rests. The order of Special Term should be affirmed. The petitioner must seek relief in another mode.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs besides disbursements.

* Sec. 4.

† † Dudley v. Mayhew, 3 Coms., 9 ; Renwick v. Morris, 3 Hill, 621 .

Footnotes

  1. * Laws 1862, p. 610.
  2. † † Laws 1868, chap. 798.