Cook v. Rounds

Morse, J. The bill of complaint in this cause was filed May 26, 1881, to foreclose a mortgage executed by the defendants George W. and Mary R. Rounds and Charles J. and Laura L. Jaqua, upon two separate parcels of land in Kent county, one being' the homestead of George W. Rounds, and the other the homestead of Charles J. Jaqua. The mortgage was dated December 1,1856, and was given to secure the payment of $325.05, and a stipulated amount of interest, being the first three annual payments, of $108.35 each, upon a certain land contract, bearing date the same day, wherein complainant agreed to sell and convey to said Rounds and Jaqua another parcel of land in the same county, for the sum of $758.44. The bill also asks for a foreclosure of said contract, claiming, at the date of the filing of his bill, that there was then due upon said contract and mortgage the sum of $1,500. The defendants Rounds and Jaqua in their answer admit the execution of the contract and mortgage, but claim that they paid the mortgage according to its terms. They admit going into possession of the premises described in the contract, but claim that, after being in such possession about three years, they were dispossessed of said lands by one Jacob W. Winsor, who had the legal title thereto; that they believe the complainant had no title to said lands; and that although the said Winsor and his grantees have held and occupied said premises adversely to said complainant for more than twenty years, he has never, by himself or any one else, demanded possession of, or asserted any right in, said lands. — 314 — They also set up the statute of limitations, and add &. demurrer clause for want of equity. The defendants Farr, Dean, Briggs, Walling, and Morrison, answer, in substance, that they are strangers to the mortgage and contract; that if the same were ever made they are without consideration and void; deny that they are subsequent purchasers or incumbrancers, or that they or their grantors went into possession under Rounds or Jaqua, or under the land contract. They also set up title in themselves, derived from the state, and possession thereunder for twenty years, as a bar, and also demur the same as the others. The circuit court, in chancery, upon pleadings and proofs, dismissed the complainant’s bill, decreeing that the mortgage had been fully paid and satisfied; and that as to the land described in the contract, the defendants Rounds and Jaqua had no title or interest, at the time of the filing of the bill, in the land contract or the premises; and that the other defendants had no title or possession to the land by virtue of or under said contract, but their possession of the premises was and had been adverse to complainant. The complainant appeals from this decree. The first dispute arises upon the terms of the mortgage; or, rather, the true construction of 'its condition. The defendants claim that the mortgage, by its terms, calls for the payment of the first three installments of the land contract, with the interest upon the. whole amount of principal unpaid at the date of the falling due of each of said three installments. The complainant claims that the mortgage not only secured these payments, but the interest upon the whole unpaid principal of the land contract, as long as any part of said principal remained unpaid. The condition of the mortgage reads as follows: “ That if the said parties of the first part pay to the said party of the second part the sum of three hundred and twenty-five dollars and five cents, in three annual payments of one hundred and eight dollars and thirty-five cents, with interest payable annually upon seven hundred and fifty-eight dollars and forty-four cents, according to a certain land contract, bearing even date herewith, executed by George W. — 315 — Rounds and Charles J. J aqua to the said party of the second part as collateral security, then these presents shall cease and be null and void ; but in case of non-payment of the said sum of three hundred and twenty-five dollars and five cents, or the interest thereof, or any part thereof, at the time, in the manner, and at the place above limited and specified for the payment thereof, then,” etc. We think the claim of the defendants the correct interpretation. The parties have also put a practical construction upon this clause. As will be seen hereafter, payments of principal and interest were made up to about the time defendants claim the whole amount due and owing upon this mortgage was satisfied, according to their view of the meaning of the interest clause. After that, no further payment was offered or made by Rounds and Jaqua, and none was demanded by complainant. The defendants Rounds and Jaqua claim that they paid the mortgage in full some time in the year 1860; that the first payment was made December 2, 1857, being $152.60 in cash, leaving a balance due of $8.81, which was, by agreement, to stand over until next payment. This is admitted by complainant, and the same was indorsed by him upon the contract. The second payment is claimed by defendants to have been made in 1858, by the cutting and hauling of logs from lands of complainant to a mill, at two dollars per thous- and, and the payment of the saw-bill at complainant’s request. This is denied by complainant. Without going into detail as to the evidence, the proofs amply sustain this claim of defendants. As to the third payment, defendant Jaqua swears that he went to the village of Brooklyn, Jackson county, in this State, where complainant then lived and now resides, and paid him, January 3, 1860, the sum of $76.23 in cash, leaving a balance due of $71.38, to be paid in three months by the cutting and hauling of another lot of logs, which balance was subsequently paid by such work. This is denied by complainant. There is an indorsement upon the contract, made of the date of January 3,1860, now reading as follows: — 316 — “$76.23. Ree’d third January, 1860, seventy-six 23-100 dollars on second payment, leaving balance of $71.38 to be on interest at 10 per cent., for three months.” This indorsement is in the handwriting of complainant, and was made, except the word “ second,” at the date thereof. It appears, without dispute, that the word “third” was erased by an indelible pencil mark, and the word “ second ” written over it by the same pencil, since the commencement of this suit, either by the complainant or some one in his behalf. The claim of defendants as to this third payment seems to be supported by the proofs; but, above all, it is sustained by the conduct of the complainant since that time. He testifies that he has never seen either Rounds or Jaqua since the date of said payment, nor has he ever in any way demanded of them any payment upon said mortgage. For over twenty-one years he has slumbered upon the rights he claims to hold in this mortgage and contract, and made no sign. Previous to this payment in 1860 he was prompt and active in the collection, or attempted collection, of the payments and interest as they came due. His silence since gives confirmation to the claim of defendants that the mortgage has long been paid and satisfied. In regard to the land contract, it seems, without any serious controversy, that, about the time the last payment was made upon the mortgage, Jacob TV.’ TVrnsor, claiming to own the land, forbade the defendants cutting any timber or doing any "work upon the premises, under threats of prosecution. He also took possession of other lands belonging to complainant. Defendants Rounds and Jaqua wrote to complainant, setting forth Winsor’s claim and threats, and requesting him to defend and protect them under his title. His agent, one Thornton, also wrote him to the same effect, and stating, further, that TV insor, and parties claiming under him, were cutting timber upon other lands claimed by complainant. To these letters no responses were obtained, except a direction to Thornton to go to Grand Rapids and employ the best lawyer there, and prosecute the intruders for trespass. To — 317 — tliis Thornton replied that it took money to employ counsel, and he must send some. To this letter no answer was ever received. Believing that complainant had abandoned his claim of title to the land, the defendant Bounds, who was in possession, gave up the premises, and defendant Jaqua and one Carmer purchased and received a deed of the same land from Winsor; and under the title so acquired their grantees have ever since been in actual occupancy of the premises, claiming adversely to complainant. The testimony also shows that no demand of possession, or claim of right to the land, has ever been made by the complainant, or by any one in his behalf, until the commencement of this suit. The defendants now holding said premises have, by themselves and through their grantors, been in the actual, exclusive, adverse possession of the land described in the contract for more than twenty years continuously previous to the filing of complainant’s bill. It is, indeed, true that he paid the taxes on this land up to 1875, save for the years 1866, 1872, and 1874; but the record shows that these taxes were paid, as evidenced by the receipts, with other lands in the same vicinity; and the mere payment of taxes cannot be regarded as such an assertion of ownership as to affect, in any way, the adverse possession of the defendants, or to weaken to any extent the evident force of all his other acts and conduct looking towards an actual abandonment of his claim. Since the last payment upon the mortgage and contract, no communications whatever have passed between the parties. He has made no effort to collect principal or interest upon either mortgage or contract, although he has been in the neighborhood of the premises, engaged in lumbering. He saw the timber upon other lands he claimed to hold by the same title as he did the contract land, cut and carried away by Winsor and others, claiming adversely to him, and made no effort to prevent it or to assert his rights. He has shown in this case no title to the premises described in the contract, except the fact of his contracting to sell it — 318 — to the defendants Rounds and Jaqua; and, as far as we know, there is no evidence that he ever held any title whatsoever to the premises upon which he seeks a performance of the land contract. We therefore, under the proofs, must hold the decree of the circuit court for the county of Kent, in chancery, dismissing his bill of complaint, to be a just and proper one; and the same is affirmed, with costs of both courts. The other Justices concurred.