Chouteau's v. Burlando

Scott, Judge, delivered the opinion of the court. 1. The sheriff’s deed under the judgment and execution of Menard did not embrace 4426 arpens of the grant to Pascal Detchemendy. This quantity was expressly excepted, and whatever may be the operation of that deed in other respects, yet, being the conveyance of a public officer, acting in invitum on the rights of others, by no rule of construction applicable to [487] the voluntary grants of private persons, can it be made to pass an interest which, by the very terms of the instrument, was not designed to be conveyed. This consideration disposes of the defence set up by the respondents, that they are purchasers for a valuable consideration without notice, as it appears that they have not and never had any other than the tax title to the land in controversy. If the defendants mean to rely on their tax titles, then they must be presented to the court in such a manner as that a satisfactory judgment can be pronounced upon their validity. As the record now stands, the deeds conveying those titles play no other part than to confuse and embarrass a record already sufficiently entangled and difficult to be unravelled. It does not appear whether or not those deeds cover the land in controversy. 2. It disposes, too, of the objection raised on the finding of the fact by the court that there was no declaration of a knowledge of the personal identity of the mortgagor by the officer talcing the acknowledgment, as they, not being subsequent purchasers of the land mortgaged, cannot be affected by the omission. 3. The facts, as stated in the record, do not warrant the conclusion to which the court came in relation to the right of the plaintiffs to foreclose. Although a debt is barred by the statute of limitations, so that an action cannot be maintained to recover it, yet, if that debt is secured by a mortgage, its payment may be enforced, so long as the mortgage is available. (Angel on Lim. 77-8.) An important consideration is, that the land was wild and unimproved. The portion of the large grant on which the mortgagor resided, which, however, was no part of the mortgaged premises, was abandoned by the mortgagor a few years after the forfeiture of the mortgage, and he never returned to it. The mortgagor complained of the delay in foreclosing the mortgage. His own son testified to his inability to pay his debts. There was no possession by the mortgagor, in the sense that is required, in order to raise the presumption of satisfaction of the debts. Under the cir [488] cumstances, it is as fair to presume that the mortgagee was waiting f.or an enhancement of the value of the mortgaged premises, as they were insufficient to satisfy the debts, as to presume the satisfaction of the mortgage from the delay in bringing suit. Neither party was in possession. The land was wild and uncultivated. In such case, the most natural presumption would be, that things continued as they were at the beginning. As Pascal Detchemendy died in the year 1844, we may suppose that the debts were all barred at that date, so that an action at law could not be maintained for their recovery. No inference, therefore, unfavorable to the mortgagees, can arise from their failure to present them to the administrator for allowance, even had there been assets in his hands sufficient to satisfy them. After twenty years' possession by the mortgagee, the burden is on the mortgagor to show that such length of possession does not bar a right of redemption. The mere declarations and conversations of the mortgagee in possession, have not been received to destroy the presumption of payment arising from twenty years’ possession. (Angel on Lim. 497.) But when declarations and conversations come in aid of the fact of abandonment of the mortgaged premises, which is open and notorious, there would seem to be no impropriety in receiving them. So, on the other hand, where the’mortgagor has been permitted to retain possession, the mortgage will, after a length of time, be presumed to have been discharged by payment of the money or a release, unless circumstances can be shown sufficiently strong to repel the presumption, as payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing and the like. (Hughes v. Edwards.) In the absence of all possession by the mortgagor or the mortgagees, it is obvious that these principles have nothing to do with the case under consideration, 4. It is strange that an order of publication should have been made against John L. Detchemendy, as non-resident adminis [489] trator. The 58th section o£ the 1st article of the act concerning administration, enacts that letters of administration, in no case, shall be granted to a non-resident, and when an executor or administrator shall become non-resident, his letters shall be revoked. If the administrator, as such, was a necessary party to the suit,, the proper course to be pursued was, to have the first letters revoked and another administrator appointed. The administrator not having been properly a party before the court, no judgment affecting the estate of which he was administrator, can be rendered against him for costs or any other thing. The judgment will be reversed, and if there is any thing in the tax titles of the defendants, they can in a future trial be presented in an intelligible way. The other judges concur.