Ballou v. Taylor

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: DURFEE, C. J.
• Citation: 14 R.I. 277
• Parties: DANIEL R. BALLOU, Administrator, v. WILLIAM R. TAYLOR, Receiver.
• Decision Date: 03 November 1883

14 R.I. 277

DANIEL R. BALLOU, Administrator,
v.
WILLIAM R. TAYLOR, Receiver.

Supreme Court of Rhode Island.

November 3, 1883

The remedy on a mortgage is not lost because a personal action on the mortgage note is barred by the statute of limitations. The remedy on the mortgage is generally available until payment of the note is shown, or may be presumed, or until the mortgagor has remained in possession for twenty years without recognizing the mortgage.

A bill in equity was brought to cancel a mortgage and to enjoin proceedings under it, because the mortgage note was barred by the statute of limitations, because the mortgagee's [14 R.I. 278] delay had caused the loss of the mortgagor's defensive evidence by the death of witnesses, and because the note had been paid in money and services.

Held, that the bill could not be maintained; the above named period of twenty years not having run out, the mortgagor being equally with the mortgagee cognizant of the loss of evidence, suit having been brought on the note to which the mortgagor pleaded dilatory pleas, and the evidence showing that the note was not paid in money and that the services gave only a claim in set off which was barred by the statute of limitations.

Held, further, that no costs should be allowed, the respondent having filed a demurrer which was overruled and having delayed to enforce the mortgage.

BILL IN EQUITY for the cancellation or discharge of a mortgage and for an injunction.

Bill dismissed without costs .

Ballou & Jackson, for complainant.

George H. Browne & George L. Cooke, Jun., for respondent.

DURFEE, C. J.

The object of this suit is to get the defendant decreed to cancel or discharge a mortgage which he holds, as receiver of the Bristol Commercial Bank, on the real estate of the late Joseph M. Blake, the complainant's intestate. The grounds alleged for the relief are: first, that the note secured by the mortgage is stale, the statute of limitations having long ago run against it, and that the complainant, by reason of the defendant's laches or neglect to prosecute the mortgage, has lost the evidence which would enable him to defend against it; and, second, that the note has been fully paid or satisfied, partly in money and partly in professional services rendered by the intestate in his lifetime for the bank. Other matters are alleged but not as independent and complete grounds in themselves.

1. The mortgage was executed by Blake, August 12, 1848. It was given to secure a promissory note for $1,375, dated July 18, 1848, and payable to the bank or order four months after date, and also to secure any renewal or renewals thereof. The note was renewed from time to time, interest being paid, until May 6, 1858, when the note in question, being a note of the same tenor and amount, was given. On April 2, 1869, a payment of $350 was made by Blake on this latter note and indorsed thereon. A payment of $500 not indorsed on the note is also...