Magee v. Bradley
| Decision Date | 23 June 1896 |
| Citation | 35 A. 103,54 N.J.L. 326 |
| Parties | MAGEE et al. v. BRADLEY et al. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Action by Julia Magee and others against Catharine Bradley and others. Decree for complainants.
This bill is filed to obtain a partition of a tract of land, and, incidentally, to have adjusted the respective liens claimed by certain of the owners in common. The parties are the heirs of Forbes Holland, who died on the 14th day of January, 1894. There is no dispute in respect to the fact that the title to the tract was in Forbes Holland at the time of his death, nor in respect to the identity of the heirs of Forbes, nor in respect to their respective interests, apart from the liens which are claimed to exist. The history of the evolutions of title to this land, and the way by which the alleged liens arose, is as follows: In 1802 these lands belonged to John Holland, the father of Forbes. There was then a mortgage upon it for the sum of $2,000, held by Eliza Boutillier. This mortgage had been executed in 1845. It was assigned by Eliza Boutillier on the 15th of September, 1865, to Catharine Bradley, a daughter of John Holland, which assignment was recorded September 22, 1865. John Holland died on the 23d day of May, 1862, leaving a will, by the terms of which he devised unto his wife, Nancy, absolutely, an undivided half interest in his real estate. He also devised to his wife, Nancy, a life interest in the other undivided half part of his lands; the remainder in such undivided one-half interest to go to his son Forbes Holland. He charged upon the real estate given to Nancy a legacy of $500, bequeathed to his son Edward Holland. He charged upon the remainder in the one-half interest devised to Forbes the payment of $600 for the benefit of his son Thomas Holland. The said $600 was to be invested in land, to be occupied by Thomas during his life, with power to Thomas to dispose of the same by will, and, in default of such a disposition, the same was to go to Thomas' heirs. Nancy, his widow, occupied the land devised to her until 1863, when she died, leaving a will, by the terms of which she devised to Forbes, her son, the undivided half of the property which she had held absolutely. Nancy also imposed certain additional charges upon the undivided half which she devised to Forbes. In the first place, she bequeathed to Daniel Coghlan, who was one of her executors with Forbes, the sum of $3,000, to be invested for Julia Magee, her daughter. She bequeathed to her daughter Diana Bradley $500, to her daughter Eliza Cavanagh $500, to her daughter Margaret Doyle the sum of $500. The last bequest was coupled with the condition that she should come into this state, and personally demand the same, within 10 years from the decease of the testatrix. She gave to her grandson John Donnelly the sum of $300; she gave to her son Joseph Holland and to her daughter Catharine Bradley the sum of $5 each. All these pecuniary legacies were charged upon the real and personal estate given to Forbes; so that Forbes, after the death of Nancy, had the entire title to that land, subject to charges upon it to pay legacies, which were liens, as follows: $500, first lien on an undivided half; $600, first lien on the other undivided half; then the legacies mentioned in Nancy's will, which were liens upon an undivided half, subject to the $500 legacy to Edward Holland. With Nancy, the widow, there had lived, it seems, her daughter Julia Magee. After the death of Nancy, Forbes told Julia to remain upon the property, and gave her the privilege of doing what she chose with the proceeds. From 1865 down to the time of filing this bill, Julia Magee lived upon the premises in question, occasionally visited by the different relatives. From the time of the death of Nancy to the death of Forbes, affairs remained in this shape. Nothing appears to have been done in respect to the settlement of the estate, and there appears to have been practically nothing settled, as there was little or no personalty and no debts. Little appears in the testimony concerning any transactions in reference to the existing mortgage of $2,000, or in respect to the legacy of $3,000 to Julia Magee, or the other legacies charged upon the real estate.
W. W. Cutler, for complainants.
McCarter, Williamson & McCarter, for defendants.
In this posture of affairs, the questions raised by the pleadings are whether the mortgage of $2,000, held by Catharine Bradley at the time of her death, is a subsisting lien upon the tract; whether the legacy to Julia Magee is a subsisting lien, and, if so, to what amount; and whether the other legacies charged upon the lands are subsisting liens, and, if so, to what amount. The ride is entirely settled that where a mortgagor has remained in possession without making any payments of principal or interest, or doing any other acts in recognition of the mortgage, for a period of 20 years, payment of said mortgage is presumed. 1 Jones, Mortg. § 915. The onus probandi, by reason of the lapse of this period of time, is thrown upon the mortgagee to prove that the instrument is still subsisting unpaid. The presumption does not act like a statutory limitation, but as a rule of evidence, as well as a rule of public policy. The degree of proof required to overcome the presumption must necessarily vary with the circumstances which surround each individual case. In Executors of Wanmaker v. Van Buskirk, 1 N. J. Eq. 693, the circumstance that the mortgagor had married the daughter of the mortgagee, and had issue; that the mortgagor had died many years before, leaving his wife and children in possession; that they were not in the situation to pay either principal or interest; that to have exacted payment might have brought distress upon them, and upon those who depended on this property for support, and so would have been harsh,—was deemed sufficient to rebut the presumption of payment. In Evans v. Huffman, 5 N. J. Eq. 354, the chancellor cited with approval the...
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