Jenkins v. Trustees of Andover Theological Seminary
| Decision Date | 01 March 1910 |
| Parties | JENKINS v. TRUSTEES OF ANDOVER THEOLOGICAL SEMINARY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sweeney & Cox, for appellants.
Knox & Walsh, for respondent.
This is a bill in equity in which the plaintiff asks the court to order the defendants to cancel and discharge a mortgage held by them upon certain real estate owned by him, and to release the property 'from the lien thereof.'
The bill sets out the plaintiff's title to the land, the mortgage thereon given by him to the trustees of Phillips Academy (from whom the defendants claim as assignees) and the further averments (contained in the sixth paragraph) 'that since the 23d day of May, 1884, no sum has been paid by him upon said mortgage as principal or interest, and no sum has been paid as rent for said premises by him to the mortgagees or to any person entitled to the estate of said mortgagees or representing the interests of said mortgagees and that no demand has been made upon him for the payment of any part of said principal or the interest accrued thereon if any such has accrued, and that during all the time from the said 23d day of May, 1884, the plaintiff has been operatin said farm in connection with his father, the said Benjamin F. Jenkins; and that to the best of the plaintiff's knowledge no demand was over made during said period from the 23d day of May, 1884, to the present upon said Benjamin F. Jenkins for the payment of the mortgage debt or any part thereof or for interest on the said mortgage debt, and that no part of the mortgage debt, or interest, or rent, was ever paid by the said Benjamin F. Jenkins during his lifetime.' Then, after setting out that the defendants have advertised the premises for sale under the power contained in the mortgage, it alleges 'that by reason of the foregoing premises the assignees of said mortgage have no valid claim upon said premises under said mortgage, and no valid claim against the plaintiff upon the note secured by said mortgage, and that said assignees have no claim upon or any right, title or interest in the said premises, and no authority or right to execute said power of sale by the sale of said premises as advertised.'
The defendants in this answer substantially admit the title of the plaintiff and the delivery of the mortgage, all as alleged in the bill. They further admit that 'since the 23d day of May, 1884, no sum has been paid by the plaintiff or by Benjamin F. Jenkins upon said mortgage as principal or interest; that no sum has been paid as rent for said premises by the plaintiff or by the said Benjamin F. Jenkins to the mortgagees or to any persons entitled to the estate of the said mortgagees or representing the interest of said mortgagees, and that the plaintiff has been in possession of said premises as alleged in the sixth paragraph of the plaintiff's bill.' They deny that the mortgage is invalid and aver that they are the holders thereof by assignment from the original mortgagees, that no part of the principal or interest has ever been paid, that they have made repeated demands upon the plaintiff, and that at various times he has promised the defendants to pay the same and that the mortgage is a valid and subsisting lien upon the real estate.
There was a hearing before a justice of the superior court, at which evidence, some oral and some written, was introduced. Upon the pleadings and the evidence there was a decree for the plaintiff as prayed for, and the case is before us upon the defendants' appeal therefrom.
It is to be noted that nowhere does the bill allege that the debt secured by the mortgage has been paid. The plaintiff's only ground for relief as set out in his bill is that stated in the sixth paragraph, as hereinbefore quoted. In his brief he uses the following language: Upon this ground alone did the plaintiff rest his right to the relief for which he asked.
There can be no doubt that at common law continued possession by a mortgagor and those under whom he claims for 20 years after the mortgage debt is payable, without any entry or claim by the holder of the mortgage, creates a presumption that the mortgage debt is paid. Howland v. Shurtleff, 2 Metc. 26, 35 Am. Dec. 384. But it is not a conclusive presumption of law, but simply one of fact, which may be controlled by evidence of part payment or other circumstances warranting a conclusion that the debt was not paid. Cheever v. Perley, 11 Allen, 584, 586. In this last case it was said by Colt, J. (page 587), that to control this presumption 'some positive act of unequivocal recognition like part payment or a written admission, or at least a clear and well identified verbal promise and admission intelligently made within the period of 20 years, is required.'
If this principle of law were applicable to this case there would seem to be no valid defence to the bill. Before the filing of the bill more than 20 years had elapsed since any sum had been paid upon the mortgage, and the evidence might fairly have been regarded by the trial court as falling far short of that required by the rule laid down as above stated in Cheever v. Perley. But in the present case there is lacking one condition essential for the application of this rule, and it so happens that it is the very condition upon which the presumption is chiefly based. The condition is that the mortgagee shall have suffered the mortgagor to remain in possession 20 years after condition broken, without taking possession to enforce his claim, or in other words, that the mortgagee having the right to enter upon the land shall have allowed the mortgagor, or those under whom he claims, to remain in possession 20 years without any recognition of the validity of the mortgage. As stated by Cushing, J., in Ayres v. Waite, 10 Cush. 72, 76: 'Such lapse of time and the neglect on the part of the mortgagee to enforce the claim, while another is exercising an adverse possession, are grounds for a presumption in fact which, unexplained and uncontrolled, authorize a jury to infer that the mortgage is satisfied.' It is analogous to the principle of acquiring title by adverse possession.
In the case before us the mortgagor held the estate subject to the life estate of his father holding as tenant by curtesy, and the mortgage, although expressed to be of the whole estate in reality covered only the remainder after the life estate. It is true, as the plaintiff alleges in his bill, that he always had lived upon the farm, and that ever since the mortgage came due he had been operating the farm in connection with his father, but in view of the existence of his father's life estate this allegation of possession, so far as existing during the lifetime of his father, must be regarded as referring to possession not as a remainderman, because as such he had no right to possession, but as under the life estate of his father who alone had the right. And the admission in the answer that the plaintiff 'has been in possession of said premises as alleged in the...
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