Dodge v. Emerson
| Decision Date | 21 October 1881 |
| Citation | 131 Mass. 467 |
| Parties | George W. Dodge, administrator, v. Pliny W. Emerson |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Worcester. Writ of Entry, by the administrator de bonis non with the will annexed of the estate of Nathaniel Dodge, to recover a parcel of land in Millbury, mortgaged on April 1 1856, to Dodge by Harold Whittemore, who conveyed the same on April 16, 1866, subject to the mortgage, to Jason Emerson by whom, on November 1, 1875, it was conveyed to the tenant. Plea, nul disseisin, with a specification of defence that the debt secured by the mortgage had been paid. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the demandant; and the tenant alleged exceptions to certain instructions of the judge, which, together with the facts not above recited, appear in the opinion.
Exceptions overruled.
J. Hopkins, for the tenant.
B. W. Potter, for the demandant.
OPINION
The bill of exceptions states that the only disputed question in this case was, whether the debt secured by the mortgage had been paid. The burden was on the tenant to prove payment, and he introduced a note of Jason Emerson, the tenant's grantor, for $ 1000, given to the demandant, August 30, 1875. The amount of the mortgage debt at that time was between $ 1100 and $ 1200. The demandant, admitting that he received the note, introduced evidence tending to prove that the note was not given and received in payment of the mortgage debt, but for a different purpose.
It does not appear, in the statement of the evidence, that the note which represented the mortgage debt, and which is afterwards spoken of as the Whittemore note, was given up to Jason Emerson when his note of $ 1000 was received by the demandant. But it is to be presumed that there was some evidence of that fact, for the tenant contended that the giving of the note of August 30 by Jason Emerson, and the delivery to him of the Whittemore note, created a presumption in law that the one was given and received in payment of the other, and that the burden of proof was on the demandant to show that it was not so given.
The presiding judge explained to the jury, in a manner not objected to, the difference between the debt secured by the mortgage and the note described in the mortgage as evidence of that debt, and that the exchanging of the note so described for another note would not...
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