Lewis v. Crowell

• Decision Date: 17 May 1910
• Citation: 205 Mass. 497,91 N.E. 910
• Parties: LEWIS et al. v. CROWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 497

91 N.E. 910

LEWIS et al. v. CROWELL.

Supreme Judicial Court of Massachusetts, Barnstable.

May 17, 1910

COUNSEL

Walter Welsh, for petitioners.

R. A Hopkins, for respondent.

OPINION

KNOWLTON C.J.

This case presents a question in regard to the construction of Rev. Laws, c. 182, § 15 (St. 1882, c. 237), which has been referred to in former cases, but not decided. The facts come within the language of the statute, and give the court jurisdiction to enter a decree for the petitioner, within the decision in McMahan v. McMahan, 91 N.E. 298, unless by implication the finding 'that the condition of the mortgage has not been performed takes the case out of the statute and leaves the mortgage in full force.'

It has been said in former decisions that the object of the statute is to provide for the removal of a cloud from a title when there has been 20 years' continuous possession by a mortgagor after the mortgage becomes due without recognition of the mortgage. Mitchell v Bickford, 192 Mass. 244, 246, 78 N.E. 453; McMahan v. McMahan, supra. But there is no provision for reaching this result except when the statutory requirements are availed of in proceedings under this statute. By the terms of the statute, if the mortgage is to secure the payment of money, they can be availed of only when no evidence is offered of a payment on account of the debt secured by the mortgage within 20 years after the expiration of the time limited for the performance of the condition thereof, or of any other act within said time, in recognition of its existence as a valid mortgage. Unless the necessary facts are proved without the introduction of evidence tending to show the contrary, no action can be taken under the statute. McMahan v. McMahan, ubi supra. If the petitioner's averments are met with evidence of payment or other recognition of the mortgage within the 20 years referred to, the petitioner is left to his rights at common law, where he has the benefit of a presumption of payment after the expiration of 20 years, but is still subject to a determination of the fact whether the condition of the mortgage has been performed. His rights in such a case are fully stated in Jenkins v. Trustees of Andover Theological Seminary, 91 N.E. 552.

If the mortgage is to secure the mortgagee against a contingent liability, the court, under St. 1885, c. 283, embodied in Rev. Laws, c. 182, § 15, may determine whether this contingent liability has ceased to exist, and whether the mortgage ought to be discharged.

In mortgages to secure the payment of money the presumption of payment after the lapse of 20 years is so strong that if, in addition, we have the neglect of the mortgagee to offer any evidence of payment or of a recognition of the mortgage when notified of an application to obtain a discharge under this statute, the Legislature may well treat it as establishing an absolute limitation upon the right of the mortgagee to enforce the mortgage. The words 'and no action to enforce a title under said mortgage shall thereafter be maintained' create this limitation.

The question is raised whether this statute was...