Bennett v. Delphia

• Decision Date: 06 May 1925
• Citation: 129 A. 234
• Parties: BENNETT v. DELPHIA et al.
• Court: Vermont Supreme Court

129 A. 234

BENNETT

v. DELPHIA et al.

Supreme Court of Vermont. Addison.

May 6, 1925.

Appeal from Chancery Court, Addison County; Frank L. Fish, Chancellor.

Suit by D. A. Bennett against Oliver Delphia and others. Decree for plaintiff, and defendants appeal. Affirmed, and cause remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

Jones & Jones, of Rutland, for appellants.

Charles I. Button, of Middlebury, for appellee.

TAYLOR, J. The plaintiff is the assignee of a mortgage executed by the defendant Oliver Delphia in 1885 to one Johnson, to secure the payment of his promissory note of the same date. This is a proceeding to foreclose such mortgage, in which the petition was filed October 13, 1923. The defendants rely upon the statute of limitations, and deny the making of any payment on the note within the limitation period. The payment relied upon by the plaintiff as tolling the statute is claimed to have been made December 17, 1908. The case was referred to a special master, on whose findings the chancellor rendered a decree of foreclosure. The only question controverted before the master was whether the defendant Oliver Delphia paid the plaintiff $15 on December 17, 1908, to be applied on the mortgage indebtedness. It appears that other disputes as to earlier payments are pending; but, since the plaintiff's right to a decree depended on his establishing this payment, it was agreed those questions might rest until the validity of the $15 payment should be determined. The master reported that, while the testimony was conflicting and admitted of doubt in some particulars, he was of the opinion, and so found, that the payment was made as testified to by the plaintiff, and was credited on the Johnson mortgage at Delphia's request.

The defendants seek the review of several exceptions taken to the master's report. It appears from the findings that the plaintiff's store was burglarized in July, 1908, and many valuable papers, including the original note and mortgage given by Delphia to Johnson were stolen and have never been recovered. In 1909 the plaintiff made copies of notes to replace those lost in the burglary. Such a copy of the mortgage note, with payments indorsed thereon as claimed by the plaintiff, was admitted in evidence against defendant's objection. The only ground of objection now relied upon was that the indorsement of the disputed payment, not being in the handwriting of Delphia but made by the plaintiff, did not comply with G. L. 1868, and was not admissible to take the case out of the statute of limitations. The statute in question provides that the requirement of G. L. 1867, respecting a new promise to avoid a statute of limitations, shall not alter or take away the effect of the payment of any principal or interest; but that an indorsement or memorandum of such payment made upon a promissory note, unless in the handwriting of the party making the payment, shall not be proof of the payment sufficient to take the cause out of the provisions of the statute. It is seen that the statute preserves the rule that payment on the mortgage indebtedness renews the mortgage, so that an action may be brought to enforce it within the limitation period thereafter (Kendall v. Tracy, 64 Vt. 522, 24 A. 1118), but with the proviso restricting the force of the indorsement of the payment as evidence.

This provision was first construed in Bailey v. Danforth, 53 Vt. 504. It was there held that the statute was intended to cut off the establishment of the payment by the indorsement alone, unless proved to be made in the handwriting of the party making the payment; but that an indorsement upon a note not in the handwriting of such party might be considered in determining whether payment had been made thereon, though of itself not sufficient to establish the payment. A similar question arose in Cleaveland v. Dinsmore, 59 Vt. 436, 8 A. 279, where it was held that affirmative proof may be adduced to verify the indorsement as a valid payment and remove the bar of the statute. The doctrine of Bailey v. Danforth was reaffirmed in Lawrence v. Graves, 60 Vt. 657, 15 A. 342; Fletcher v. Brainerd, 75 Vt. 300, 55 A. 608: McDowell v. McDowell's Est., 75 Vt. 401, 56 A. 98, 98 Am. St. Rep. 831. See, also, Sanborn v. Cole, 63 Vt. 590, 599, 22 A. 716, 14. L. R. A. 208; Crahan v. Town of Chittenden. 82 Vt. 410. 414, 74 A. 86.

The defendants rely upon Arbuckle v. Templeton, 65 Vt. 205, 25 A. 1095, but that case is not in conflict with those cited above. There the note in suit bore the indorsement, "received 50 dollars to apply on the within note, of Charles Templeton." The indorsement was in the handwriting of the plaintiff. The money to make the payment was handed to the plaintiff by a stranger to the note, who was dead, and the question was whether it was furnished by the defendant. If the defendant furnished the money the note was not outlawed as to him; otherwise it was. It was held to be error to allow the indorsement to go to the jury because it contained the statement that the money came from the defendant, concerning the truth of which the plaintiff had no knowledge to which she could properly testify. The record disclosed no evidence tending to show that the defendant furnished the money, unless the indorsement itself had such tendency. It was not found necessary to decide this question; for, as the opinion states, if it was such evidence, it was not of itself sufficient under the statute.

It fairly appears that the indorsement on the copy of the note was not received as independent evidence, but rather as a memorandum in connection with plaintiffs testimony respecting the payment. The decisions cited above make it clear that the statute does not exclude such use of an indorsement or memorandum of payment. Defendants' counsel give a wrong interpretation to what Professor Wigmore says respecting Bailey v. Danforth and McDowell v. McDowell's Estate. In the text referred to, he is maintaining that indorsements of payments on bonds or notes made by the creditor should not be received in evidence unless it appears that they were made before the statutory period ended, on the ground that they are only admissible when the making of the indorsement was against...