Gould v. Holland Purchase Insurance

HakdiN, J.: The certified copy of the Bemis mortgage was entitled to the same force and effect as the original mortgage. (1 R. S., 759, § 17; 2 id., 1146 [6th ed.], § 35; Clark v. Nixon, 5 Hill, 36.) The application referred to that mortgage, and stated that it was an incumbrance to the extent of $4,400. There was no proof given of payment of any part of it having been made prior to the fire. It is true the plaintiff “ produced the bond on the trial, and put the same in evidence.” But the trial was in July, 1877. The fire occurred [540] January 1, 1874. The case states “there was no evidence showing or tending to show that any part of either of said mortgages had been paid.” Thus it appears affirmatively to us that there was no evidence to establish payment of either of the mortgages prior to the fire. We must, therefore, ’treat the plaintiff’s possession of the $4,400 bond as having been acquired subsequent to the fire. We are brought to consider the case as it is presented with the Bomis mortgage of $4,400 in evidence and the Mudge mortgage of $850 in evidence, and no evidence of payment given by either party upon the trial in respect to the amount due upon them at the time of the fire. The referee finds and holds that “in the absence of proof that there is anything unpaid on a mortgage appearing on the record to be unsatisfied, it cannot be presumed, for the purpose of enforcing a forfeiture, that there is anything, or if anything, what amount remains unpaid upon it.” When the Mudge mortgage of $850 was given and recorded, it became “an additional incumbrance” upon the property. It was made an “actual and real” incumbrance “upon the property insured in this company.” The parties by the application and policy had treated the Bemis mortgage as an incumbrance to the extent of $4,400, and referred to it as the specific one which was embraced in the limit fixed by the parties, which should rest upon the property without notice to the company. There had been no such lapse of time as to justify a presumption of payment of the Bemis mortgage. It was given in 1870. The insurance application referred to it as an incumbrance for $4,400 in the month of May or June, 1873. The Mudge mortgage was made in December, 1873, and the fire took place 1st of January, 1874. There were no circumstances given to raise a presumption of payment, to enable us to make it exceptional from the provision of the Revised Statutes, in respect to lapse of time giving rise to presumption of payment. (Lawrence v. Ball, 14 N. Y., 477; 2 R. S., 301, §48; Moreys. Farmers’ L. and T. Co., 14 N. Y., 303; Henderson v. Henderson, 3 Denio, 314; Heyer v. Pruyn, 7 Paige, 465.) The proof therefore- established an incumbrance beyond the permitted amount, and that avoided the policy. We think the [541] learned referee fell into an error in finding that there was no evidence that the property was “incumbered for an additional amount.” If he had not given the plaintiff the benefit of a presumption, that did not arise, of payment, he would have so found. For such error, wo think the judgment should be reversed and a new trial ordered before another referee, with costs to abide the event. 'Talcott, P. J., and Smiitii, J., concurred. . Ordered accordingly.