Megargel's Administrator v. Megargel

Mr. Justice Steurett delivered the opinion of the court, March 10, 1884. In none of the numerous exceptions to the report of the referee is it even alleged that he failed to find any material fact that the testimony would have warranted. His findings of fact therefore, sustained as they are by the evidence, and approved by the court, must now be considered conclusive, as much so as the special verdict of a jury, and by them alone the validity of the judgment must be tested.' He found that the mortgage on which the scire facias issued was executed November 16,1861, by defendant’s intestate to secure the pa\rment of $380, then due and owing by him to his father, the plaintiff below; that the interest thereon is $482.60, and no part of either principal or interest has been paid. These are the only facts found by the referee, and the only legal conclusion that could be drawn therefrom was that plaintiff below was entitled to judgment for $862.50, the principal and interest of debt secured by the mortgage. This is all that is really [479] necessary to be said in vindication of tlie judgment; but a brief reference to tlie questions that arose, and the manner in which they were disposed of.will lead to the same conclusion. One of the defences set up was payment, in support of which the sole evidence was the receipt of August 21, 1867, from the mortgagee to the mortgagor, for “ five hundred dollars in full satisfaction of the mortgage.” That was of course evidence of payment, but it Avas not conclusive of the fact. It was susceptible of explanation or direct contradiction : Foster v. Beals, 21 N. Y., 247-9; and, in point of fact, it ivas clearly and satisfactorily shown by the testimony of several competent witnesses that no part of the mortgage debt had ever been paid. Admissions of the mortgagor to that effect, made at different times after the date of the receipt, down almost to the time of his death, were clearly proven. The receipt, which was the sole evidence of payment, ivas thus successfully rebutted, and hence the referee was fully justified in finding the fact of npn-payment, as above stated. The debt not having been paid, as between the parties to tlie security, the mortgagee was of course entitled to recover. Another ground of defence that appears to have been suggested was, that even if the debt was not paid the mortgagee • was estopped from claiming any part thereof, because the attorney of Mr. Fetherman, who afterwards made a loan to the mortgagor, was informed the receipt had been given several years before and was still outstanding. There is nothing in the findings of fact above stated on which to base such a defence ; hut the referee disposed of it by saying in substance, that while the receipt would have estopped the mortgagee from denying payment of the mortgage, as between himself and Edward Spencer, it had no such effect as between him and other parties claiming to have been misled by its being in the hands of Mr. Spencer; that the mortgage being open and unsatisfied on tlie record, it was their duty to inquire of the mortgagee and thus ascertain from him whether the mortgage debt was in fact paid or not. In view of the evidence, and especially the facts found by the referee, we are not prepared to say there was any error in his conclusion; hut aside from this, the question is not properly before us. In his opinion, overruling exceptions to report of the referee, the learned Judge says, the only parties to this contention are “the mortgagor and mortgagee. No third party appears. The appearances are all for the defendant. An estoppel may exist as regards third parties when they are shown to have acted on the facts constituting the estoppel. No such case, however, appears here.” From the language thus employed, it may be fairly inferred that the defence of estoppel in pais was pre [480] sented. by the personal representative of the mortgagor, and not by the terre tenant; bnt whether that be so or not, the latter is not here complaining. The writ of error to the judgment was taken by the administrator alone, and in face of the established fact that the mortgage debt was not paid, he cannot avail himself of such a defence; and hence, for that reason alone, if no other, the judgment should not be disturbed. The point as to the bankruptcy of the mortgagor, involved in the first specification of error, was not made in the court below, nor does it possess any merit. The mortgagee relied entirely on his mortgage. It does not appear that he proved any claim in bankruptcy, and hence the bankrupt law did not prohibit him from proceeding by scire facias on his mortgage in the state court: Green v. Arbuthnot, 4 W. N. C., 357. The effect of the receipt, admission of testimony to rebut it, and other matters to which the remaining specifications relate, have already been sufficiently noticed. None of the assignments of error is sustained. Judgment affirmed.