Murdock v. Waterman

Citation145 N.Y. 55,39 N.E. 829
PartiesMURDOCK et al. v. WATERMAN et al.
Decision Date26 February 1895
CourtNew York Court of Appeals


Appeal from supreme court, general term, Fourth department.

Action by Gilbert Murdock, as administrator, etc., of Harvey Murdock, deceased, and another, against Clarissa Waterman and others, to foreclose a mortgage on land. From a judgment of general term (25 N. Y. Supp. 120) affirming a judgment for plaintiffs, defendants appeal. Reversed as to Clarissa Waterman, and affirmed as to other defendants.

George Brooks and E. M. Harris, for appellants.

Lynn J. Arnold, for respondents.


The only question arises upon the defense of the statute of limitations. The action is for the foreclosure of a mortgage executed by Alanson Lamb and Daniel Lamb to Harvey Murdock and Erastus Robinson, dated September 21, 1861, to secure the payment of $826, with interest, in installments, the last of which became due September 21, 1865. The mortgage contains an express covenant of payment in the same terms as in the bond of the mortgagors, executed concurrently therewith, and purports to bind them, ‘their heirs, executors, and administrators.’ The mortgaged premises consisted of a village lot, on which were two dwelling houses owned by the mortgagors as tenants in common. Alanson Lamb died intestate in 1870, and his undivided half of the mortgaged premises descended to his daughter, the defendant Mary Lamb. In 1871, Daniel Lamb, and Mary Lamb, by her special guardian, conveyed the south half of the lot and the dwelling house thereon to one Palmer, under whom the defendant Clarissa Waterman claims, for the sum of $1,650, the full value of the granted premises. The conveyance was by separate deeds. The deed executed by Daniel Lamb was with warranty, and the deed by the special guardian of Mary Lamb contained no covenants of title. Neither deed referred to the mortgage. The surviving mortgagor, Daniel Lamb, died intestate in 1872, and his undivided one-half interest in the north half of the mortgaged premises descended to his daughters, Harriet Robinson and Lucinda Lamb, and his granddaughter, Mary Lamb. Lucinda Lamb died intestate, November 8, 1887, and her interest derived from Daniel Lamb descended to her sister, Harriet Robinson, and her niece, Mary Lamb. When this action was commenced, the title to the mortgaged premises was held as follows: The south one-half was owned by Clarissa Waterman under the deeds executed in 1871; the north half had descended to and was owned by the defendants Harriet Robinson and Lucinda Lamb, one-fourth part by the former and three-fourths parts by the latter. No part of the principal sum secured by the mortgage has been paid. The mortgagors, in their lifetime, paid the interest up to September 21, 1865 (the day when the whole principal sum became due), and the payments were indorsed on the mortgage. No subsequent payment was made at any time until August 8, 1885, when, as is found by the trial judge, the sum of one dollar was paid and applied on the bond and mortgage ‘by Lucinda Lamb, on behalf of Lucinda Lamb, Harriet Robinson, and Mary Lamb, in their presence, and with their knowledge and approval, and in recognition of the mortgage lien.’ This is the payment relied upon to take the case out of the statute. It was made nearly 20 years after the mortgage became due, and the same period after the last preceding payment had been made. It was held by the trial court that this payment kept the mortgage in life, not only as against the part of the mortgaged premises then owned by the parties by whom the payment was made, but also as against the part of the premises owned by Clarissa Waterman, who was not a party to that transaction, and who neither authorized, consented to, nor ratified such payment. The payment was made on an occasion when the mortgagees called at the house on the mortgaged premises occupied by Harriet Robinson, Lucinda and Mary Lamb, and informed them that the mortgage was about to outlaw, and required that a payment be made in order to prevent a foreclosure.

It appears from the evidence that Palmer went into possession of the south house and premises under the deed of 1871, and that he and his grantees have remained in visible occupation since that time; and there is no ground for doubt that the mortgagees, on the 8th day of August, 1885, when the payment of one dollar was made, fully understood the facts respecting that conveyance and the possession thereunder, and the history of the devolution of the title of the other half of the mortgaged premises by reason of the death of Alanson Lamb. No administrators of the estate of either Daniel or Alanson Lamb have been appointed. We entertain no doubt that the finding that the payment of one dollar made August 8, 1885, was made in behalf of and with the knowledge and approval of all the three owners of this north half of the mortgaged premises, and in recognition of this mortgage lien, is supported by evidence. Nor is there any doubt that the payment operated to continue the lien of the mortgage for 20 years thereafter (unless sooner paid) as against the part of the premises then owned by the descendants of Alanson and Daniel Lamb. It was an unequivocal acknowledgment by them of the mortgage. The serious question arises as to the effect of this payment upon the lien of the mortgage upon the part of the premises owned by Mrs. Waterman, who confessedly was not a party to the payment. The question is whether a payment on a mortgage made by the heirs of the mortgagor, who have inherited part of the mortgaged premises, made after the death of the ancestor, to protect their title, arrests the running of the statute as against the lien of the mortgage on a part of lands embraced therein, conveyed by the mortgagor in his lifetime to a third person for full value, who assumed no duty and who was under no obligation to pay the mortgage debt. The statute (Code Civ. Proc. §§ 380, 381) fixes the period of 20 years after the cause of action has accrued for the commencement of an action upon a sealed instrument, and this applies to an action for the foreclosure of a mortgage. Acker v. Acker, 81 N. Y. 143. The rule was the same under the former Code. Section 90. Under the Revised Statutes the lapse of 20 years from the accruing of a right of action on a sealed instrument for the payment of money created a presumption of payment, which might be repelled by proof of payment of some part, or by a written acknowledgment of such right within that time. 2 Rev. St. 301, § 48. Prior to the Revised Statutes, an action for the foreclosure of a mortgage was not within any statute of limitations in this state, but courts of equity, in analogy to limitation at law, held that, in the absence of explanation, the remedy by foreclosure was barred where there had been a delay of 20 years between the accruing of the right of action and the filing of the bill, on the presumption that the mortgage had been paid. Giles v. Baremore, 5 Johns. Ch. 545. The statute, 21 Jac. I. c. 16, upon which most of the statutes of limitation in the several states prescribing the period of limitation to actions at law have been modeled, contained no provision on the subject of the effect of acknowledgments or payments in renewing or continuing the debt, but the courts of England, by a species of judicial legislation, grafted onto the statute exceptions founded on these circumstances, and they have been embodied in the subsequent English statutes. Lord Tenterden's Act (9 Geo. IV. c. 14, § 1) required that where an acknowledgment was relied upon to take a case out of the statute, the acknowledgment should be in writing, signed by the person to be charged thereby; but it did not deal with the effect of a part payment, nor define by whom it might be made nor who should be bound thereby. It left the subject to be regulated by the courts. See Chitty, J., in Re Hollingshead, 37 Ch. Div. 651. The statutes of this state have in the same way left the subject of what constitutes a part payment and its effect to judicial exposition. The Revised Statutes contained no express provision that a part payment of a debt within the period limited should operate to renew or continue it, nor except inferentially did they recognize that such would be its effect. The provision of the present Code, which is substantially a re-enactment of section 110 of the former Code, is the only statutory rule in this state on the subject. It declares that: ‘An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest.’ The section primarily relates to actions on contracts for the payment of money. But it leaves the effect of a part payment undefined. It does not declare that the payment must be made by the debtor, or by a person obligated to pay the debt, or, if made by one of several joint debtors, whether such payment shall operate against all. The effect of a part payment in any case, and against whom it shall operate, is to be determined by the principles established by the decisions of the courts applicable to the subject. The question has most frequently arisen in actions of assumpsit, brought upon promises for the payment of money, against the party to the contract, in which the statute of limitations has been interposed as a defense; and the general principle has been asserted with great uniformity that a part payment, available to take the case out of the statute, must have been made by the debtor or his authorized agent, or, if made originally without his authority, it must have been subsequently adopted by him as his act. This view if founded upon the reason upon which a part payment is held to renew or continue a debt. Part payment of a debt by a...

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