Brintnall v. Graves

Knowltok, J. The mortgage referred to purports to secure payment of a note for sixteen hundred dollars payable to the respondent with interest semi-annually at seven per cent per annum. The petitioner’s purpose, or one of his purposes, in making it was to defraud his creditors. The master has found that he was then indebted to the respondent in a sum less than sixteen hundred dollars, and that the respondent took and has since held the mortgage as security for the amount actually due him. Perhaps it is immaterial in this case, but it does not appear that the respondent participated in the petitioner’s fraudulent purpose. The master has found that the mortgage is valid for the amount for which it was taken, and that no part of that amount has been paid. The petition is brought under St. 1882, c. 237, to obtain a decree which shall operate as a bar to the respondent’s claim under the mortgage. We have no occasion to determine whether the court could properly enter such a decree as the petitioner prays for in any case in which it appeared that there was a valid mortgage, the condition of which had not been performed. There is much force in the argument that the object of the statute is merely to provide for the removal of a cloud from the record title of the real estate, when it is encumbered by an undischarged mortgage which is not shown to be in force, and which has not been recognized by the mortgagor by payment or otherwise within twenty years after the time limited in it for the full performance of the conditions thereof. It is enougli for the decision of the present case that the petitioner wrote a letter within twenty years prior to the filing of the petition, which was an act in recognition of the mortgage. The master found that the letter referred to the personal indebtedness of the petitioner to the respondent, which was secured by the mortgage. In the letter the petitioner makes many apologies for his failure to pay anything on it, and promises, if he can [388] have time, to do something towards the payment of it. • The recognition by a mortgagor of an indebtedness known to be secured by a valid mortgage, unaccompanied by any objection to the mortgage, is a recognition of the mortgage. The master’s report, as we understand it, shows another act within twenty years in recognition of the mortgage. The petitioner and his copartners became bankrupts in November, 1877, and all of their estate, real and personal, passed to their assignees under the provisions of U. S. Rev. Sts. § 5044. A part of this property was the petitioner’s right in equity to redeem this mortgage. The assignees took possession of the property and petitioned the court for leave to sell the equities in the real estate of "the debtors. They sold the equity in this property to the petitioner by a deed of release. Their treatment of this as an equity of redemption in their petition for an order of sale, and their sale in pursuance of the order, must be assumed to have been in accordance with their real title, as found by the master and shown by the record in the registry of deeds. Their possession, petition for an order of sale, and sale, were all within twenty years prior to the filing of the petition, and their action was prima fade a recognition of this mortgage. The entry must therefore be, Petition dismissed.