McKechnie v. McKechnie

Follett, J.: From July 10, 1858, the date of the. sale under the mortgage foreclosure, to October 15, 1891, the date of the commencement of this action, a period of more than thirty-three years, the defendants and their testators, have been in the undisputed possession of the mortgaged premises, claiming to be the owners thereof, and enjoying all of the rights of proprietorship. Each of the defendants interposed, in addition to defenses on the merits, the defense that the cause of action alleged in the complaint was barred by the ten and twenty years’ Statutes of Limitations. During all of these years Jane McKechnie, plaintiff, has been of full age and under no legal disability. Mary McKechnie, plaintiff became twenty-one years of age October 9, 1869, and for twenty-two years before the commencement of this action lias been of full age and under no legal disability. February 14, 1872, John A. McKechnie, plaintiff, became twenty-one years of age, and for eighteen years before the commencement of this action has been of full age and under no legal disability. The litigants have been during this period residents of the village'of Canandaigua, which is only thirteen miles from the village of Palmyra, the place where the mortgaged property is situated. Prior to September 1,-1877, when chapter 4 of the Code of Civil Procedure took effect, an action to redeem land from the lien of a mortgage brought against a person in possession claiming title in hostility to the mortgagor was barred after such possession had continued for ten years. (Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, Id. 468.) By section 379 of the Code of Civil Procedure, which took effect September 1,1877, the time in which such an action might be brought was extended to twenty years. By section 101 of the Code of Procedure and by section 396 of the Code of Civil Pi’ocednre- the time in which infants may sue is extended one year after they .become of age. Under both Codes the cause of action set forth in the complaint is barred, unless it is established that the possession of the defendants and of their testa — 97 — tors has not been hostile to the title of the mortgagor and to his successors in interest. The learned trial court found that defendants’ testators entered into possession of the premises and continued therein as mortgagees and not as owners under a promise made through James Peddie, their attorney, to the plaintiff Jane McKechnie, that the proceeds of the premises, over and above necessary and reasonable charges and expenses, should be applied to the support of herself and children, and that the promise was authorized by the mortgagees who afterwards recognized and ratified it. This is the only finding relied on by the plaintiffs to take this case out of the operation of the statute, which finding is challenged by the defendants as contrary to the weight of evidence. It is conceded by the learned counsel.for the respondents that there is' no legal evidence of an express promise by the defendants’ testators to hold the premises as mortgagees in possession and account for the rents and profits, and the only evidence tending to show that Jane McKechnie ever believed in the existence of such a .promise was given by her. She testified that in June, 1858, before she left the premises, James Peddie, the attorney who foreclosed the mortgage, called on her and the following conversation occurred: “ Q. I (plaintiffs’ counsel) only want to know what the conversation was ? * * * A. He (James Peddie) came to tell me that James McKechnie said that he was not going to settle my husband’s business as he had promised him to; he thought I was not to make myself at all uneasy about the business, because it was going to be thrown altogether, and I would be well supported out'of the business. As he was leaving, he stopped at the door and he said, ‘ Don’t make yourself at all uneasy; you are to be well supported out of this business.’ Mr. James told him so. * * * Q. I understood you to say that Mr. Peddie told you that James McKechnie told him to come and tell you that ? A. Yes, sir. Q. Did you make any reply to him? * * * A. Yes, sir. Q. Did you tell Mr. Peddie what James had told you? A. Yes, sir. Q. Will yon state what you told Peddie that James had said to you ? A. I told Peddie that James told me that Mr. Peddie would come and tell me all about the business ; I had spoken to James and —— Q. I only asked for what you told Mr. Peddie. A. Yes, sir.”- — 98 — An attorney employed to effect a statutory foreclosure of a mortgage has no implied power to compromise the rights of his client, or to nullify the act which he is employed to perform, and before the defendants can be bound by the promise of Peddie it must be shown that he was expressly authorized to make the promise. (Lewis v. Duane, 141 N. Y. 302, affg. 69 Hun, 28.) There is 'no evidence that James Peddie liad any authority to make such a promise. It appears that at this time he was engaged in foreclosing the mortgage, which proceedings* were begun April 14, 1858. His' former partner, called by the plaintiffs, testified that he could not say that James Peddie was the agent for J. & A. McKechnie in any way, was simply an attorney for them in legal matters which they had at Palmyra. He did not know that Peddie had any charge of the brewery property, and, so far as he knew, his employment related to the brewery business, debts and accounts. This falls far short of showing that Peddie was vested with authority to make the promise testified to by Jane McKechnie. On the contrary, it tends to show that he had no such ■authority. It is argued in behalf of the plaintiff that the snbsecpient deal ings between J. & A. McKechnie and the plaintiffs tend to support the findings that such a promise was made, and that by such dealings it was ratified. I am unable to find any support in the evidence for this contention. During these thirty-three years none of the plaintiffs, so far as the record shows, took the slightest interest in the Palmyra brewery. Had there been an agreement that the mortgage and interest thereon, the taxes and expenses of managing the brewery and the value of the goods and the house rent furnished, were to be charged on one side and the rents and profits on the other side of a mutual account, it seems to me there would have been some entry in the books denoting such an understanding, or, at least, that "these plaintiffs, or some one of them, during these years, would have taken some steps to ascertain the state of the accounts and the condition of the property. If such an agreement had been made a.nd acted on by the parties it is altogether unlikely that John A.. McKechnie would have been ignorant in respect to it. He was the only son and lived with his mother and sister. At the time of the trial of this action he was forty-three years of age,- and, as he testified, a man of — 99 — property. The first conversation he ever had with either of the defendants, in respect to the Palmyra brewery, was in April, 1890, when Crin S. Bacon, the executor of James MeKechnie, stated that" thereafter he "would have to pay rent for the house which he and his mother had occupied for so many years. John A. MeKechnie testified that the mortgage was then spoken of by Bacon, but John A. MeKechnie did not then assert that he knew of its existence, or that he,, his mother and sister, had a right to redeem the property. As before stated, from October, 1858, to September, 1865, J. & A. MeKechnie supplied the plaintiff with a house, fuel and groceries.' From September, 1865, until April 5,1884, the family occupied the house free' of rent and received twenty-five dollars per month in cash. January 28, 1883, Alexander MeKechnie died. John A. MeKechnie testified that when the money payments were stopped in April, 1884, Alexander McKechnie’s executor told him they wpuld not get. twenty-five dollars per month thereafter, and said that he (John A. MeKechnie) must take care of his mother, and that James McKechnie, the surviving member,of J. & A. MeKechnie, would take good care of the sister, Mary MeKechnie. No steps were then taken to assert any rights in the Palmyra property and no claim was made that payments were due the plaintiffs on account of that property. The plaintiffs continued to occupy the house, without the payment of rent, until September 12, 1889, when James MeKechnie died, leaving a will giving legacies to John A. and Mary MeKechnie, two of these plaintiffs. Whether James MeKechnie did or did not care for Mary up to the time of his death, pursuant to the promise, does not appear. She was not a witness on the trial. April 1,1890, the executor of Alexander MeKechnie conveyed the interest of that estate in the house, which then was and for so long had been the home of the plaintiffs, to the executor and trustee of James McKechnie. Jane MeKechnie testified that in October, 1890, Mr. Bacon, the executor of James, told her she would have to pay rent for the house. She described the conversation as follows: “ Mr. Bacon told me that I would have to pay rent for the place I was living in ; I thought it very strange that I should be asked for rent for the place, and I told Mr. Bacon that if I had to pay rent I should have to look out for something to pay it with; that I hadn’t a dollar of my own, and I thought 1 had something in the Palmyra property left for — 100 — mé, and Mr. Bacon told me that was outlawed, and I said : ‘ Why isn’t this outlawed ? ’ ‘ This was an entirely different thing,’ he said, and I' couldn’t understand it, and I asked him if the law was made to protect the rich man’s thousands and steal the widow’s mite; Mr. Bacon was standing at the outside of the door at the time and there was nothing more said. The house I was then living in was the house next to the house I am living in now, the very next door. * «. *. They certainly knew I had nothing to pay rent with unless I looked something up to pay it with.” Bacon denied that he ever had such a conversation with Jane McKechnie. It is insisted in behalf of the plaintiffs that the fact that the goods which J. &. A. McKechnie furnished them were charged on the hooks of the firm establishes the plaintiffs’ theory that the defendants’ testators did not take possession of and occupy the premises,, claiming title thereto, hut were in possession as mortgagees recognizing the title of the plaintiffs. I think the accounts do not tend in any way, under the circumstances of this case, to establish the plaintiffs’ claim. Payment for these goods was never dt manded. No account was ever presented, and the fact that they Were charged simply indicates that they were entered for the purpose of showing how much ivas furnished this family and to keep an account of the expenses of the firm. The plaintiffs concede that the amount furnished by the firm in goods, rent and money exceeded $7,000. It seems very plain tome that the whole course of the dealing of the firm with their brother’s widow' and children establishes the fact that they were dealing generously' and not deceitfully with them. The finding that the defendants’ testators entered into possession of the brewery property under an agreement to account for the rents and proceeds and to hold it as mortgagees in possession, is wholly ■ unsustained by the evidence. December 22, 1857, Robert McKechnie quit claimed the brewery property to Tuvker, who on the. next day quit claimed it to Jane McKechnie. Both of these deeds were recorded June 30, 1859. When Jane McKechnie was under examination she was asked by her counsel: “ Q. Had you ever any knowledge'prior to the 26th day of June, 1859, of the existence of such a deed? A. No, I did not.” This was four days before the two deeds were placed on — 101 — record. What knowledge she then acquired, from whom, or what directions, if any, she gave in respect to the deeds, is not disclosed. During all of these years she knew of those deeds and took no action to enforce the rights now asserted in behalf of herself and children in the premises. These deeds and the bills o-f sale of the brewery property were executed within two weeks of each other and were undoubtedly given by Bobert McKechnie to divest himself of the title to the real estate and fixtures. What exigency caused these conveyances to be executed does not appear. These deeds are ancient ones, for more than thirty years on record,,.and the presumption is that they were duly executed and delivered, which was not rebutted by the bare statement of this interested witness that she had no knowledge of them prior to June 26, 1859. In addition to these deeds the affidavits of the foreclosure of the mortgage have been a matter of record since June 30, 1859, and if the title was in Jane McKechnie the title under the foreclosure is perfect. The affidavits show that Jane McKechnie, the grantor under these deeds, was personally served with the notice of sale. It is true she denies that she was so served, but as against her testimony is the affidavit of the attorney who effected the foreclosure, made in the usual way and placed on record. He knew of the existence of these deeds, for they were acknowledged before him, and it seems to me highly improbable that the attorney willfully and without any motive,.so far as it appears, committed perjury and placed the evidence thereof on record while the person injured thereby was living! If we assume that his affidavit is false we must also assume that James and Alexander McKechnie, his employers, were engaged in a scheme to defraud the widow and children of their brother out of their estate, and that the attorney was their instrument. The subsequent conduct of James and Alexander McKechnie from that time down to the times óf their deaths shows that they were not engaged in such a conspiracy. The sale of these premises was advertised to be made July 10, 1858, at a hotel in the village of Palmyra, where Jane McKechnie resided at the time, and the premises were sold on the day and at the place mentioned by public auction. This village then had less than 2,000 inhabitants, and it is difficult to believe that Mrs. McKechnie did not know about the sale, and Peddie could not — 102 — have hoped that his perjury, if perjury he committed, would remain undiscovered. The finding that these deeds. were not delivered and that the notice of sale was not served, is to, my mind clearly contrary to the • weight of evidence. This is a very stale demand, and it- has long been a rule of the courts of equity that such demands will not be enforced. Courts of equity aid the vigilant and not the indolent. This maxim was expressed by Lord Camden in Smith v. Clay (3 Bro. Ch. 640, note) as follows: “ A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands where- the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence.” This is a well-settled rule of equity. (Snell Eq. [9th ed.J 41 Pom. Eq. Juris. § 418 ; Wood’s Lim. § 60.) The plaintiffs have ■ shown no reasonable excuse for sleeping on •their alleged rights for a third of a century, and until after nearly all of the actors in the transactions out of which this action arose have died. Legal titles which have been of record, and’ supported by undisputed possession for more than a generation, should not be overthrown by evidence of such little probative force as that which is contained in the record before us. The judgment should be reversed and a .new trial granted, with costs to abide the final award of costs.. All concurred, .except Adams, J., not voting. Interlocutory judgment reversed and a new trial ordered, with costs to abide the final award of costs.'