Sowarby v. Russell — 29 N.Y. Super. Ct. 322

Majority

p. 322

John Sowarby, plaintiff and respondent, vs. Mary Russell, impleaded, &c. defendant and appellant.

Headnote

1. It is a general principle that written instruments for the payment of money require no proof of default, and the burden of showing there has been no default, rests upon the party charged with the default. Hence, in actions, for the recovery of money alleged to be due upon a written instrument, the production and giving the instrument iú evidence is all the proof required; and the affirmative of showing there is nothing due lies upon the defendant.

2. The production of a bond and mortgage being sufficient proof, in a common case, that the interest is unpaid, if it be not indorsed, and enough to authorize a judgment for such interest, so, also, the same proof will be sufficient as the foundation for any further judgment appropriate to the case.

3. In either case, if it appears from the bond that the pay day has passed, it is presumptive evidence that the interest is due and unpaid; and any thing tending to discharge the obligation must be averred and proved'by the defendant, who necessarily holds the. affirmative of the issue. M inomnlit prdbatio qui dioit non qui negat.

4. Where a mortgage contains a covenant that if any default be made in the payment of interest, and such default continue for thirty days, the mortgagee may elect to have the whole principal become due, no other proof is. required, in an action for foreclosure, than the production and reading in evidence, the bond and mortgage. A mortgagee, to avail himself of the breach of a covenant, is not bound to prove a negative.

(Before Monell, Garvin and Jones, JJ.)

Heard and decided May —, 1868.

This action was brought to foreclose a mortgage for eight hundred dollars, the principal due March 9,1869, containing the following clause: “And it is hereby'expressly agreed, that should any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the ' same remain unpaid and in arrear for the space of thirty days, then and from thenceforth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of eight hundred dollars, with all arrearages of interest thereon, shall, at the option of the said party of the second part, his administrators or assigns, become and be due and payable

p. 323

immediately thereafter, although the period above limited for the payment thereof may not then have expired, any thing therein before contained, to the contrary thereof, in any wise notwithstanding.”

.The complaint alleged that the mortgagor had failed to comply with the condition, “ by omitting to pay any interest thereon, and that more than thirty days have elapsed since the interest became due. By reason whereof the whole principal sum, with the arrearages of interest, has become due and payable.”

The answer substantially denied that the interest was due or unpaid.

On the trial before the chief justice, without a jury, the plaintiff offered and read in evidence the bond and mortgage, and rested. The defendant moved to dismiss the complaint, and for judgment for the defendant, on the ground that there was no proof that the mortgage was due. The motion was denied, and the plaintiff had judgment. The defendant appealed,

E. T. Gerry, for the appellant.

W. Tracy, for the respondent. .

The only question in this case is, whether the mere production of the bond and mortgage was sufficient evidence of default in the payment of interest, to authorize a judgment declaring the whole principal sum secured by the' mortgage to be due and immediately payable.

• It was conceded that ordinarily no other or further proof would be necessary, but it was attempted to distinguish this case; and it was insisted that where a mortgagee designed to avail himself of the breach of a covenant, and to claim the whole principal to be due, by reason of the non-payment of interest, he must show default by other proof. - In other words, that he must prove that the interest has not been paid.

p. 324

It is a general principle that written instruments for the payment of money require no proof of default, and the burden of showing there has been no default rests upon the party charged with the default. In actions, therefore, for the recovery of money alleged to be due upon a written instrument, the production and giving the instrument in evidence is all the proof required, and the affirmative of showing there is nothing due lies upon the defendant.

I am unable to distinguish the case before us from the ordinary case. The proof required in any case is that default, has been made in the payment of interest. All that need be proved in any case is such default; and so far as regards the proof, the consequences of the default are quite immaterial. Therefore if the production of a bond and mortgage is sufficient proof in a common case that the interest is unpaid and will authorize a judgment for such interest, then the same proof will be sufficient as the foundation for any further judgment appropriate to the case. In either case, if it appears from the bond that the pay day has expired, it is presumptive evidence that the interest is due and unpaid; and any thing tending to discharge the obligation must be averred and proved by the defendants, who necessarily holds the affirmative of the issue. JSi ineumbit probatio qui dieit,non qui negat.

The covenant in the mortgage is, that if any default be made in the payment of interest, and such default continue for thirty days, the mortgagee may elect to have the whole principal become due. I do not see that any other proof than such as was offered in this case, could have been required. A mortgagee to avail himself of the breach of a covenant cannot be required to prove a negative.

I think the judgment should be affirmed, with costs.