Cheever v. Perley

Colt, J. The common law presumption of payment of the debt secured by a mortgage, which arises in favor of the mortgagor who has been in uninterrupted possession of the mortgaged premises for a period of twenty years, is not a conclusive presumption of law, but may be controlled by evidence of part payment of principal or interest, or other admissions or circumstances from which the jury would be authorized to find the debt still unpaid. And the question here is, whether the evidence produced was sufficient to defeat the presumption, the burden of proof being upon the plaintiff. Trial by the jury having been waived, the case was passed upon by the court. The whole evidence is reported, and the defendant excepts to it as insufficient in law to support the finding [587] of the judge. A consideration of the weight of the evidence does not decide the question upon, exceptions taken in this form. Whether the finding was against the evidence can only be considered upon a motion for a new trial. We are limited here to the inquiry whether there is any evidence, however slight in tendency, proper to be submitted to a jury, to prove the facts sought to be established. If there is no evidence, then the finding of the court must be set aside and treated as an error in law. Forsyth v. Hooper, ante, 419. Polley v. Lenox Iron Works, 4 Allen, 329. Chase v. Breed, 5 Gray, 443. Commonwealth v. Ober, 12 Cush. 498. In examining the evidence, we cannot see that there was any recognition of the validity of this mortgage shown by any admission or act of the defendant within the period of twenty years. Upon the defendant’s objection, the evidence, if any, afforded by the indorsements on the note was ruled out, and the decision of the court rested solely upon the testimony of the plaintiff and one other witness. The plaintiff’s testimony in reference to the payment of four hundred dollars by his intestate to the defendant at the time of the assignment of the mortgage from Robinson had reference to a transaction which took place twenty-seven years before this suit was brought, and has no bearing upon the presumption arising from, the conduct of the parties during the twenty years immediately preceding the date of the writ. The plaintiff also states that the defendant at other times promised to pay his son, and to give a mortgage on another house in payment of interest, but he fails to fix the time of any promise within the twenty years. He says, indeed, that the defendant never refused to pay until the last time he called upon him; but we think mere silent acquiescence in the plaintiff’s demand is not sufficient to reoel the presumption. Some positive act of unequivocal recognition, like part payment or a written admission, or at least a clear and well identified verbal promise or admission, intelligently made within the period of twenty years, is required. Parol evidence, testimony of loose conversations had many years before, is to be cautiously received, when offered to defeat a presumption so beneficial in [588] quieting titles to real estate. The testimony of the other witness is open to the objections and falls short of the requirements above stated, It is to be remarked that the defendant was in no way personally bound for the payment of the mortgage debt, which was contracted by another party, and had no interest to extinguish the mortgage except as owner of the equity of redemption. The considerations stated are certainly quite as weighty, under these circumstances, in the defendant’s favor. Howland v. Shurtleff, 2 Met. 26. Denny v. Eddy, 22 Pick. 533. Jackson v. Wood, 12 Johns. 242. Dexter v. Arnold, 1 Sumner, 109. Whiling v. White, 2 Cox Ch. Cas. 290. Hughes v. Edwards, 9 Wheat. 498. Exceptions sustained.