Hollister v. York

The opinion of the court was delivered by Royce, Ch. J. The mortgage which the orator seeks to foreclose was executed July 30, 1854, by Ira Batchelder to Jeremiah Carleton, to secure the payment of three promissory notes payable to said Carleton. The orator purchased of said Carleton two of said notes for the sum of $300, September 25, 1863. There was then duo on said notes $340.40, but- the orator only asks to have the $300 and annual interest allowed. Some portion of the mortgaged premises Avas owned by, and had been in the possession of, the defendant Mallory and his grantees since .1865 ; and the bill as to him Avas dismissed. The only contention is as to the remaining portion of the mortgaged premises. July 12, 1866, one Bcmis, avIio Avas then the owner, convoyed by deed of Avarranty eight acres of the same to Calvin York. January 16, 1861, I). B. Pitkin and Avife, Avho Avere then the owners, convoyed to Mahala York, the then Avife of Calvin York, six acres of the same, and on the same day Pitkin and Avife conveyed the remainder of the mortgaged premises lying in lot four of the fifth range to Calvin York. February 18, 1875, Calvin York and Avife convoyed the premises that had been so conveyed to them to their son Edson, and on the same day Edson executed a mortgage to the said Calvin and Mahala of the same promises to secure their maintenance during life, which Avas the consideration for the conveyance to [3] him ; tincl in addition to the ¡stipulation contained in- .said mortgage, agreed with the said Calvin, by parol at the time of the execution of the mortgage, to assume and pay a certain debt of the said Calvin to the orator, at the time represented to him to be about $100, and not to exceed that sum. The said Maliala, Calvin and Edson have been in the possession of the premises ever since the respective conveyances to. them. Calvin died about July, 1870, and Maliala since the commencement of this suit. The defendants, Maliala and Edson, by their answer, claimed payment and the benefit of the Statute of Limitations. 'Whether either defence is available must depend upon the facts found and reported by the master. It is found that at the time Pitkin conveyed to Calvin and Maliala, Pitkin paid Carle!on one of the notes secured by the mortgage, and that Calvin assumed and agreed to pay $800 of the Carleton mortgage.; that after the two notes passed into the hands of the orator, Calvin had conversation with him in relation to them, and acknowledged that it was his duty to pay them, and on October 81, 1871, paid the orator $78, which was endorsed upon the $100 note; and that, July (i, 1874, Calvin York paid the orator $95 on this mortgage. This last finding was made upon the testimony of the orator against the defendants’ objection, but no question has been made as to its admissibility. That an endorsement was made upon one of the notes, with the consent of Edson, October 1, 1876, of $17.50, for money that ivas then duo from the orator to Edson, he then supposing it was being made upon the $100, which he had assumed and agreed to pay, and which ho then acknowledged and promised the orator to pay. Neither Mahala nor Edson had any other knowledge, than what the record furnished of the existence of the mortgage. It is not found that any payments have been made except those that have been applied upon the notes ; so the defence must rest upon the claim that the right is barred by the Statute of Limitations. It was held in Martin v. Bowker, 19 Vt. 526, that while courts of equity act upon a principle of analogy to the Statute [4] of Limitations, and if the lapse of time has been suoli that a suit at hvw could not bo maintained for the recovery of the mortgaged premises, a court of equity would not sustain a suit for the foreclosure of the equity of redemption, but would presume payment and satisfaction of the mortgage debt; but that the payment of interest upon the debt, or any portion of the principal, or any other act recognizing the existence of the mortgage, and that it was unsatisfied and obligatory, would be sufficient to repel the presumption of payment, and take the case out of the operation of the statute. In 2 Jones on Mort., sec. 1198, it is said that a payment of interest or part of the principal, renews the mortgage, so that an action may bo brought to enforce it within the statutable period thereafter, and that this rule is universally recognized; and that whore there are several persons ■ interested in the equity of redemption, such payment by one of them keeps alive the right of entry not only against him, but also against all other owners of the equity. The record was constructive notice of the existence of the mortgage. The orator had no other claim against the Yorks but the mortgage notes, and he had a right to understand that the payments made by them were intended to apply upon these, and to treat them as an admission of the debt and their liability to pay it. The orator could not be deprived of the security given by the mortgage by any conveyances that might be made by the mortgagor or his grantees. As affecting his security, he was not bound to inquire what conveyances had been made; and when the statute bar was removed he was entitled to all the security given by the mortgage. The mortgage having been renewed by the payments made, that portion of the premises deeded to Mahala is equally liable with the portion deeded to Calvin for the payment of the debt secured by the mortgage. Decree reversed and cause remanded, with a mandate in accordance with the views above expressed.