Cape Girardeau Cnty. v. Harbison

• Decision Date: 31 October 1874
• Citation: 58 Mo. 90
• Parties: CAPE GIRARDEAU COUNTY, for the use of the ROAD AND CANAL FUND, Plaintiff in Error, v. JOHN HARBISON, Adm'r de bonis non of DARWIN B. HARBISON, dec'd, et al., Defendant in Error.
• Court: Missouri Supreme Court

58 Mo. 90

CAPE GIRARDEAU COUNTY, for the use of the ROAD AND CANAL FUND, Plaintiff in Error,

v.JOHN HARBISON, Adm'r de bonis non of DARWIN B. HARBISON, dec'd, et al., Defendant in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Cape Girardeau Circuit Court.

Linus Sanford, for Plaintiff in Error.

I. The presumption of payment from lapse of time is not an absolute bar to the foreclosure of a mortgage, but may be rebutted by evidence. (Chouteau's Ex'r vs. Burlando, 20 Mo., 486: Hughes vs. Edwards, 9 Wheat., 489.)

II. The report of the sale of the real estate by the administrator under the order of the Probate Court, and the subsequent deed of trust executed by John Harbison, furnish ample evidence that the debt has not been paid.

III. Where the plaintiff, to remove the bar of the statute of limitations, proves a general acknowledgment of indebtedness in writing, the burden of proof is on the defendant, to prove that the promise related to a different demand than the one sued on. (Carr vs. Hurlbutt's Adm'r, 41 Mo., 268; Davis vs. Herring, 6 Mo., 21; Elliott vs. Leake, 5 Mo., 208; 2 Greenl. Ev., § 441, et seq., 10 Ed.)

Houck & Ranney, for Defendant in Error.

I. The note and mortgage show that they were executed more than twenty years before the institution of this suit. They also show by the indorsements, that no payments have been made within ten years before the institution of the suit. To take them out of the statute of limitations, then, in order to permit of a foreclosure of the mortgage, the plaintiff must produce evidence to prove that subsequent promises were made by Darwin B. Harbison within ten years of the bringing of this suit; at least he should produce evidence to repel the presumption of payment raised by the statute of limitations. The case of Chouteau's Ex'r vs. Burlando, (20 Mo., 486) cited by plaintiff, is not in point, because there was nothing to show that the land was wild and unimproved, and no evidence showing that the mortgagor had abandoned all claim to the land, and there was no evidence showing that the debt had not been paid. Also in the case of Hughes vs. Edwards, (9 Wheat., 489) cited by plaintiff, there was evidence of promises made by the mortgagor, which would be sufficient to take it out of the statute of limitations.

II. Until entry by the mortgagee for condition broken, or until foreclosure, the mortgagor is the owner of the premises. (Kennett vs. Plummer, 28 Mo., 142.) The plaintiff cannot recover unless it shows that it was in possession within ten years before the commencement of this action. (Wagn. Stat., 1872, p. 915, § 1.)

III. The instructions asked by the plaintiff were properly refused by the court, for the reason that the first one assumes that payments were made on the note and mortgage within ten years before the institution of the suit; and the second declares the law to be, that an administrator can, by his admissions and confessions, dispose of the estate of his intestate. The admissions of an administrator are not competent to bind the estate. (Allen vs. Allen, 26 Mo., 327; Thompson vs. Peters, 12 Wheat., 565; Ciples vs. Alexander's Adm'r, 2 Comst., 767.)

IV. The statutes provide that before a claim can be allowed against an estate, it must be supported by the affidavit of the claimant, and by other legal testimony. (Wagn. Stat., 1872, p. 103, §§ 12, 13.)

The administrator did not state how or whether he knew of his own knowledge that the debt was still unpaid, and how could he know except from Darwin B. Harbison himself? The fact that the mortgagor was in possession of the premises during the whole time, is enough to show that he had not resigned his claim to the land, and to raise the presumption that the incumbrance had been discharged.

LEWIS, Judge, delivered the opinion of the court.

On March 6, 1849, Darwin B. Harbison executed his bond for $566, payable in twelve months, to Cape Girardeau county, for the use of the road and canal fund, with a mortgage to secure it on 212 acres of land. Harbison dying, Peter Byrne became his administrator, and in that capacity sold the mortgaged premises in 1864, for payment of debts of the estate; John Harbison, defendant in error, being the purchaser. Afterwards Byrne died, and defendant in error succeeded him in the administration of Harbison's estate. The present suit is for a foreclosure of the mortgage. The bond is indorsed with a number of payments, the last of which bears date May 2, 1858.

Defendant pleaded the statute of limitations in ordinary form. Plaintiff replied, alleging two several acknowledgments in writing, within ten years before the commencement of the suit; one by Byrne, as administrator, and the other by defendant. The court, sitting as a jury, found for the defendant, and rendered judgment accordingly.

The plaintiff introduced on the trial Byrne's report of his sale as administrator, in which the land was stated to be “subject to a certain mortgage lien for the sum of $410, and accruing interest.” He also introduced a deed of trust executed by defendant to Thomas B. English, in 1866, containing this expression: “It is also understood that the said first mentioned tract, or the one-third part thereof, owned by said deceased, was by him mortgaged to the county of Cape Girardeau for the sum expressed in said mortgage, and which yet remains unsatisfied.”

At the close of the trial plaintiff offered the following declarations of law, which the court refused: 1. The payments on the note secured by mortgage, and such payments on the mortgage, are such an acknowledgment and recognition of the debt as will prevent the bar of the statute of limitations. 2. The recognition and acknowledgment of the debt for which suit is brought, by the administrator of the mortgagor, and also by this defendant after he had become the owner of the real estate mortgaged, are such recognitions and acknowledgments and promises to pay the debt as will prevent the bar of the statute of limitations. 3. The debt for which suit is instituted, is not barred by the statute of limitations.

These declarations were objectionable both in form and substance. The cases are very rare in which it is admissible to frame declarations of law for the court, in disregard of the rules which are imperative for instructions given to a jury. In either case, the questions of law and those of fact should be so separated that it may afterwards be seen by which class the general finding was controlled. When the facts are presented hypothetically, as: “If it appear from the evidence, that,” &c., the conclusion of law will naturally follow as independent propositions, capable of being intelligently discussed in the reviewing court. But with the sample here before us, we could never feel certain whether the court meant to reject the assumptions of fact or the suggestions of legal results, or both. From the nature of the testimony and the finding by the court, however, we are permitted to infer that either of the forms of acknowledgment relied on was held to be insufficient in law to entitle the plaintiff to a foreclosure. The evidence was documentary and unquestioned; so that we may fairly determine its interpretation and legal effect, whether treating this as a proceeding at law or in chancery. (Willi vs. Dryden, 52 Mo., 319.)

As this could not be treated as a...