Pryor v. Wood

The opinion of the court was delivered by Strong, J. The mortgage upon which this suit was brought [147] is dated January 29th 1816, and was given to Richard Pryor and Priscilla his wife. The debt secured by it was payable on the day of the decease of the said Priscilla. On the 13th day of February 1818, Pryor and wife assigned the mortgage to Julian Plum. The assignment purported to be for a valuable consideration therein mentioned, and was duly acknowledged and recorded. Subsequently, on the 2d day of December, A. D. 1842, the personal representative of Julian Plum assigned the mortgage to Jacob Snider, Jr., who, upon the 12th of the same month, assigned it to Isaac Bickley. Th’e right thus acquired by Bickley subsequently became vested in the terre tenants defendants. All the assignments purport to have been for a valuable consideration stated therein, and all were duly executed, proved, and recorded. After the lapse of nearly forty years from the time of the first assignment, the children of Mrs. Pryor (who had previously to her marriage with Richard Pryor been the wife of Joseph Budd) assert that they are the equitable owners of the mortgage; and, notwithstanding the assignments, bring suit upon it in the name of Richard Pryor, the mortgagee, who survived their mother. It is impossible for the action to be maintained. Whatever may have been the effect of the assignment to Julian Plum, upon the equitable ownership of the mortgage, it is clear that it divested the legal right of Richard Pryor and wife, and that no scire facias could afterwards be sued out in their names, or in the name of the survivor. The legal title cannot exist at the same time, both in the assignor and assignee. Under our Act of Assembly, it was competent for the assignee to sue in his own name, and consequently no legal title of the assignors longer existed of which the eestuis que use could avail themselves. But -were this not the law, the equity of the children of Mrs. Pryor, if any equity existed, was a secret one. It was not expressed in the mortgage. There was nothing upon the face of that instrument, to notify a purchaser that any other persons than Pryor and wife, the mortgagees, had an interest in it. Nor was there on the 13th day of February 1818, when Julian Plum bought, anything upon the record in the line of his title or elsewhere, that should have led him to suppose that the creditor was other than the mortgage itself disclosed, or that should have put him upon inquiry. On the contrary, the satisfaction of the earlier mortgage by the guardian of the children, who was also assignee of it; the facts that the second mortgage was given not to the assignee of the first, that it was drawn in different terms and not for the use of the heirs of Joseph Budd, and that the administration and guardian accounts, settled before Plum’s purchase, showed a large balance due to Pryor and wife, might well have justified the purchaser in believing that the mortgagees were equitable as well as legal owners of the mortgage. [148] Plum must therefore be regarded as having been a purchaser without notice of any equity outstanding against the mortgagees from whom he bought. If, then, he was a purchaser for a valuable consideration actually paid, neither he, nor any one subsequently claiming under him, can be affected by any claim to the mortgage preferred by the heirs of Joseph Budd. The assignment to him acknowledges the payment of the pecuniary consideration. It is argued, however, that it is not evidence for such a purpose, and that direct proof of payment must be made by another medium than the receipt in the'deed. The doctrine that to establish a bond fide purchase for a valuable consideration without notice, against a prior fraud or a secret trust, the receipt in a deed is no evidence of payment, has been carried very far'in this state. We are not disposed to extend it. Indeed, until the existence of a latent trust or anterior fraud has first been shown, the receipt is sufficient to establish a transfer of the use to the vendee, and is evidence for all purposes against the grantor who signed it. If it be said that, as against a stranger who claims in opposition to the deed, the receipt is a mere ex parte declaration not under oath, and not guarded by cross-examination, the same may be said of the deed itself. The receipt, as much as the words of grant and those of description, or the habendum and tenendum, is a part of the res gestee, a part of the transaction of purchase; and if the latter are evidence, it is difficult to see why the former should have no importance attached to it. Purchase for a valuable consideration paid, is an equitable defence; and, in equity, is sufficiently maintained by a defendant’s answer under oath, unless that oath is overbalanced by positive evidence upon the other side. But when this plea is introduced into a suit at law, as it often is in this state, he who asserts it is deprived of the protection which his oath would give him in equity, where the plea properly belongs. Yet, it is undoubtedly true, that, where a party claims under a deed from a fraudulent grantor, or from a trustee in whom there is a secret trust, he must not only have been without notice of the fraud or trust, but must have paid an adequate valuable consideration ; and he cannot rely upon the receipt in his deed alone, for proof of the payment of the purchase-money. But is this doctrine without any limitation ? Does this necessity to adduce evidence beyond his deed continue for ever ? When forty years of enjoyment under his deed have passed away, must he still produce in court living witnesses to prove an actual payment of the consideration which the grantor, against his own interest, acknowledged he had received ? If so, then his condition is worse than if he held by mere livery of seisin, without a parchment. Then, secret trusts and frauds are immortal, and honest rights die with the first generation. Such is not the law. There must be limits, beyond which a grantee may not be com [149] pelled to prove by evidence aliunde, that the receipt in his deed tells the truth, that the purchase-money was paid. A deed proves itself after thirty years, if possession has accompanied it. A resulting trust is presumed to have been extinguished after twenty-one years, if nothing has been done to keep it alive. After twenty-one years’ enjoyment of a way, a grant is presumed; and after a lapse of twenty years, in the absence of evidence to the contrary, the law presumes that a bond, a recognisance, and even a judgment has been paid. Surely after twenty years, it may with equal propriety be held, in Aid of the receipt of a grantor, that the purchase-money has been paid. As already noticed, the assignment of the mortgage to Julian Plum was on the 13th of February 1818. More than thirty-eight years elapsed before this suit was brought, and before that assignment was assailed. Those claiming under it are not, at this late day, under obligation to furnish any other evidence of the actual payment of the purchase-money than the receipt affords. We forbear to notice particularly the effect of the subsequent assignments to Jacob Snider, Jr., and to Isaac Bickley. It is unnecessary. From what has already been said, it will be seen that the plaintiffs cannot recover. Judgment affirmed.