Pemberton v. . Simmons

Merrimon’, J., (after stating’the facts). It seems that the deed above recited was treated in the Court below as simply a power of attorney. This, we think, was a misapprehension, and leaves out of view its chief purpose. It is very informal and disorderly in its provisions, but it has all the essential elements of, and the parties to it intended it to be, and it was, in legal effect, a mortgage, coupled with a power of sale in the mortgagee. Its purpose was to convey the title to the land to the mortgagee, to secure the payment of the debts mentioned in it, within a period of time specified, and in case of default by the mortgagor in this respect, then to give the mortgagee authority to sell the land and apply so much of the proceeds of sale as might be necessary to the liquidation of the mortgage debts. Thus the legal title was in Wightman, the mortgagee. He did not purport to execute his own deed to Pemberton, the ancestor of the plaintiffs, under whom they claim, but to execute a deed to him in the name of Simmons, the mortgagor, by himself as attorney. The authority of the mortgagee to sell the land did not contemplate such a sale and *320 conveyance. The sale was made before the condition of the mortgage was broken, and the deed purported to be executed by the mortgagor, by his attorney. Granting, for the present purpose, that Pemberton got such interest as the mortgagee under the circumstances could convey, and that the latter was estopped to deny the title of Pemberton, the latter took whatever interest he got by the deed, with notice of, and subject to the rights of, Simmons, the mortgagor, because the deed of mortgage was registered, and therefore there was notice of it to everybody; and indeed, it would seem that Pemberton had actual notice of the deed of mortgage. H e claimed by virtue of the power contained in it, and probably saw it. The mortgagee never had possession of the land in question. The mortgagor continued to have possession thereof until his death; and ever thereafter, until this action began, in 1884, the defendants, his widow and heirs at law, have had possession of the same. It does not appear that the mortgage ever was foreclosed by a sale, as contemplated by it, or by the decree of any Court. It does appear, however, that more than ten years elapsed, next after the time when a failure to pay the mortgage debts would be a breach of the condition thereof. This lapse of time raised the presumption, under the statute applicable (Rev. Code, Ch. 65, § 19), that the debts were paid at the time mentioned, and thus the mortgage was discharged and the legal estate re-vested in the mortgagor, he, until the time of his death, and the defendants, his heirs, having had possession of the land as above stated. Powell v. Brinkley, Busb., 154; Roberts v. Welch, 8 Ired. Eq., 287. As the mortgage was thus discharged, the ancestor of the plaintiffs, under whom they claim, got no title as against the mortgagor, and hence none descended to them. The title, so far as appears, is in the defendants, heirs of the deceased mortgagor. *321 ■ The defendants do not formally plead payment of the debts secured by the mortgage, at the time therein specified, and the consequent discharge of the mortgage, but in the answer they allege, “ that the plaintiffs have not brought their action within the time prescribed by law, and the same is barred by the statutes of limitations,” &c. Taking the whole of the pleadings together, we think the statute — not of limitations, but of presumption — above cited, is sufficiently referred to to indicate their purpose to rely upon payment presumed, as provided by it. There is error, for which there must be a new trial. To that end let this opinion be certified to the Superior Court. It is so ordered. Error. Venire de novo.