Shepherd's v. McClain

The Chancellor The only question in this case is one of fact. If Joseph Shepherd in his lifetime, paid off the mortgage on which a decree of foreclosure is sought in this suit, with the money 'of Douglass McClain in his hands, then the mortgage was [131] extinguished, and his taking an assignment of it could not keep it alive or prevent parol evidence being given of the fact that he paid it with money of Douglass McClain. In considering the evidence, I lay out of question the testimony of the defendant, William A. McClain. The act admitting parties to be sworn, clearly excepts the case where either party sues, or is sued, in a representative capacity; and the supplement of 1866 only permits parties to be sworn in cases where such representative has so elected by being sworn. The complainant has not so elected. But laying out of question the evidence of the defendant, the proof is full and clear, and without contradiction, that this mortgage was paid off by Joseph Shepherd with money of Douglass McClain, collected for the purpose. If this is so, nothing that he could do would ever revive the mortgage or make it a valid security in his hands. He intended to pay it off, and represented to Douglass McClain, at the giving of the deed to his son, that it was paid offj and did not object when he was requested to cancel it. The deed covenanted that the property was free from encumbrances. He prepared this deed and stood by when it was executed, and laying out of question the doctrine of estoppel, this is not to be reconciled with the fact that he held the mortgage as an existing encumbrance. It is not necessary, under these circumstances, that there should be an account between the complainant and Douglass McClain, or that the latter should be a party to this suit. In this court, costs, by the statute, are in the discretion of the court. In general, that discretion is exercised according to rules that have been fixed by practice. Courts of law, by statute, oannot award costs against executors or administrators when plaintiffs, but must, if they are unsuccessful defendants. Courts of equity are not within that statute, and have not adopted it in practice. 2 Daniell’s Ch. Pr. (3d Amer. ed.) 1462. It is an arbitrary rule, and if this court adopt it, it cannot award costs as the act regulating their practice requires, [132] according to its discretion. The mortgage was retained by Shepherd in bad faith, contrary to his duty and his promise to have it canceled on record. If his executrix was misled by finding it among his papers, his estate, not the defendant, should pay the costs. If the complainant, in bad faith, or negligently, when inquiry would have informed her, brought this suit, she ought to be ordered to pay the costs herself. RPoosvelt v. Ellithorp, 10 Paige 415. On this point I have had some doubts, but on the whole, will award them out of the estate, and not to be paid by the complainant personally. The bill must be dismissed with costs out of the estate of complainant’s testator.