Cunningham v. Davidoff

• Decision Date: 12 April 1946
• Docket Number: 80.
• Citation: 46 A.2d 633,187 Md. 134
• Parties: CUNNINGHAM v. DAVIDOFF.
• Court: Maryland Court of Appeals

46 A.2d 633

187 Md. 134

CUNNINGHAM v. DAVIDOFF.

No. 80.

Court of Appeals of Maryland

April 12, 1946

Appeal from Circuit Court of Baltimore City; Joseph Sherbow, Judge.

Suit by Dora Davidoff against Frank J. Cunningham for a declaration that the mortgage held by defendant was no longer a lien or cloud on complainant's title and to restrain the defendant from the institution of any action to foreclose the mortgage. From an order overruling demurrer to amended bill of complaint, the defendant appeals.

Order affirmed and cause remanded.

J. Harry Cross, of Baltimore, for appellant.

George B. P. Ward, of Baltimore, for appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

DELAPLAINE Judge.

Dora Davidoff alleges in her amended bill of complaint in this case: (1) that Frank J. Cunningham, appellant, and his wife who is now deceased, acquired in 1917 a property, subject to ground rent, situated on Holmes Avenue in the City of Baltimore; (2) that on January 10, 1921, they assigned the leasehold interest to Aaron M. Jacob and his wife, who immediately gave back a purchase-money mortgage to secure a loan of $1,500; (3) that the leasehold interest was assigned to her on April 26, 1936; and (4) that no payment has ever been made on the mortgage debt or the interest thereon, and hence the mortgage is barred by limitations. Complainant prays the court to declare that the mortgage is no longer a lien or cloud on the title, and to restrain the institution of any action to foreclose the mortgage. Defendant is appealing from an order overruling his demurrer to the amended bill.

In the early judicial history of England, the courts formulated the rule that, in the absence of a statute of limitations applicable to the foreclosure of a mortgage, an action to foreclose may nevertheless be barred by a presumption of payment arising in favor of the mortgagor in possession after the lapse of twenty years from the time the right of action accrues. The presumption that a mortgage has been paid when the mortgagor has been in possession for twenty years was adopted by analogy to the provision in Statute of 21 James I ch. 16, that no person shall make entry upon any land but within twenty years after his right of title accrues. The presumption of payment is founded upon the experience of mankind that claims which are valid are usually not allowed to remain neglected. The lapse of years without any attempt to enforce a demand creates a presumption that it was not originally valid or that it has ceased to exist. Chancellor Kent said: 'These presumptions, to be drawn by the Court, in the case of stale demands, are founded in substantial justice, and the clearest policy. If the party, having knowledge of his rights, will sit still, and, without asserting them, permit persons to act as if they did not exist, and to acquire interests, and consider themselves as owners of the property, there is no reason why the presumption should not be raised.' Giles v. Baremore, 5 Johns, Ch., N.Y., 545, 551. While a statute of limitations is a positive bar, the presumption of payment is not conclusive, but may be rebutted by evidence that the mortgagor or his successor in interest made a part payment on the principal or interest thereon, or otherwise acknowledged existence of the debt. Boyd v. Harris, 2 Md. Ch. 210, 214; Brown v. Hardcastle, 63 Md. 484; Subers v. Hurlock, 82 Md. 42, 49, 33 A. 409; Demuth v. Old Town Bank, 85 Md. 315, 37 A. 266, 60 Am.St.Rep. 322; Peters v. Hignutt, 138 Md. 24, 113 A. 586; Morse v. National Central Bank, 150 Md. 142, 132 A. 598; Miller v. Horowitz, 172 Md. 419, 432, 191 A. 906; Blanch v. Collison, 174 Md. 427, 436, 199 A. 466; O'Connell v. Everett, 274 Mass. 602, 175 N.E. 44; Riddlesbarger v. Hartford Insurance Co., 7 Wall. 386, 19 L.Ed. 257; 5 Tiffany, Real Property, 3d Ed., sec. 1517; 2 Alexander's British Statutes, Coe's Ed., 616, 617.

However while it has long been established that a suit to foreclose a mortgage may be barred either by presumption of payment or by a statute of limitations, it is also well settled that when a mortgagor seeks affirmative relief in a suit to quiet title, the sole allegation that the mortgage is barred by limitations is not sufficient. The presumption of payment or a statute of limitations may be used as a shield, but not as a sword. Equity considered that the moral obligation to pay a just debt continues after the lapse of the limitations period. The maxim, 'He who seeks equity must do equity,' applies in such case with full effect. A mortgagor who comes into a court of equity asking for cancellation of a lien upon his property will be...