Roberts v. Welch
| Decision Date | 30 June 1852 |
| Citation | 8 Ired.Eq. 287,43 N.C. 287 |
| Court | North Carolina Supreme Court |
| Parties | DAVID ROBERTS v. DANIEL WELCH ET AL. |
Even before our act of 1826, a presumption of satisfaction of a mortgage would arise after the lapse of twenty years, there having been no demand of payment of either principal or interest, and the mortgagor remaining in possession. And, after such delay unaccounted for, a bill for foreclosure would not lie.
Since the act of 1826, Rev. Stat. ch. 65, sect. 14, such presumption, under the like circumstances, arises within ten years after the forfeiture of said mortgage, or last payment on the same, and it is only necessary that, in the answer to a bill for foreclosure, the fact of payment be averred, and the presumption insisted on.
The case of Anders vs. Lee, 1 Dev, and Bat. Eq. 318, cited and approved.
Cause removed from the Court of Equity of Buncombe county, at the Fall Term, 1826.
No counsel in this Court for the plaintiff.
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Iredell, for the defendants.
On the 10th of August, 1813, John Knighton executed to the plaintiff a mortgage in fee for a tract of land, containing 230 acres, expressed to be for the security of a debt of $100, payable on the 15th of September following. Knighton died in 1830, leaving no child, but a widow, and several brothers and sisters, who were his heirs and next of kin. James Gudger administered on his personal estate; and, in 1836, at the instance of the brothers and sisters, the land was sold under a decree of the Court of Equity, for the purpose of partition; and was bought by Robert P. Wells, at the price of $415, which he afterwards paid into Court. In 1838, the plaintiff had his mortgage proved by the evidence of the hand-writing of Knighton, and the subscribing witness, (who was also dead,) and registered: and, in March, 1842, he filed this bill against Wells, the administrator of Knighton, and against Welch and his other heirs, praying for payment of the principal of the debt, and interest from September 15th, 1813, by the administrator, or out of the produce of the sale of the land then in Court, or else for the foreclosure of the mortgage.
Most of Knighton's heirs are non-residents, and the bill was taken pro confesso against them. But one of them, Mr. Welch, and Gudger and Wells put in answers. They state that they had no knowledge of the alleged mortgage, nor ever heard of it, until the plaintiff had it proved and registered in 1838; that they do not believe that Knighton owed the plaintiff any debt at that time; but if he did, that they believe it had been paid by him many years before his death: That, at the time the deed purports to have been made, the plaintiff had but little property, and Knighton was possessed of several slaves and other property, besides the land: that Knighton resided on this tract of land until his death, and then left a clear personal estate exceeding $1000, which was distributed soon after his death among his next of kin: and that, during all that time, the plaintiff lived in the same neighborhood, in straitened circumstances, and was also present at the sale of the land under the decree, and yet did not produce the pretended mortgage, nor set up any claim under it. The defendants then insist, that, under such circumstances, and after so long a time had elapsed before the filing of the bill, and without the plaintiff's having entered into possession of the premises, or demanded the debt, or received anything on it, the Court ought to presume payment of the debt and satisfaction of the mortgage.
The proofs induce not a slight suspicion, from circumstances existing at the date of the deed, that the mortgage debt had no real existence; but that the incumbrance was fabricated as an obstacle to others expected to claim as creditors, and was never intended to be set up by the plaintiff. There is also evidence of the circumstances alleged in the answers, from which it might be inferred, supposing the debt to have been a true one in its creation, that it had been actually paid by Knighton. But it is deemed unnecessary to consider the particular proofs to those points, because, upon the pleadings, the Court considers the plaintiff barred by a legal presumption of payment.
The bill is to be considered as one purely for foreclosure. It is true, the plaintiff submits, instead of taking the land, to accept payment from the administrator, or out of the money got for the land by the heirs. But that is really saying nothing more than that he will not interfere with the equities of the defendants, as between themselves. The plaintiff has no right to come into this Court to recover his debt merely; for that is a legal demand. His redress is against the land, and he is to have that, unless his debt has been already satisfied, or shall now be satisfied by the person claiming the land, or some one else at his instance. There is, therefore, no direct or independent equity in the plaintiff against the fund in Court: but, at most, he could only have satisfaction decreed out of it by showing a right in himself to have a decree of foreclosure in respect of the land itself. Whether a bill for foreclosure would lie where the mortgagee had not been in actual possession, nor received nor demanded interest for twenty years, is a point on which there has been much contrariety of opinion and adjudication in England. Those who were for sustaining such bills admitted, that a debt is generally presumed to be satisfied after twenty years; but they held that a mortgage was not affected thereby, because the mortgagor was tenant at will to the mortgagee, and so there was no adverse pessession, and the mortgagee could recover in ejectment at any time. Hence, it was said that, if the bond or other collateral security were presumed to be satisfied, the mortgage yet remained, and the Court of Equity could not deny the party the benefit of it.
On the other hand, it was considered, that the two securities of bonds and...
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Menzel v. Hinton
... ... has been satisfied. This doctrine has been fully and ably ... discussed by the late Chief Justice Ruffin. Roberts v. Welch, ... 43 N.C. 287." The court evidently followed this line of ... thought in Hutaff v. Adrian ... It is ... true, ... ...
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... ... be a good bar to the mortgagee's right. Adams' Eq ... (5th Am. Ed.) 114, note 2, and cases; Roberts v ... Welch, 43 N.C. 287; Moore v. Cable, 1 Johns ... Ch. 385; Bollinger v. Chouteau, 20 Mo. 89; ... Locke v. Caldwell, 91 Ill. 417; Morgan v ... ...
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...claim based on security interest where party asserting claim had already received payment of the underlying debt); Roberts v. Welch, 43 N.C. 287, 291 (1852) (noting that "the whole benefit" of a "collateral security . . . sinks with the extinguishment of the debt"). As Judge Posner once col......
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...established by the authorities cited by their counsel. See, among others, the cases of Lyerly v. Wheeler, 3 Ired. Eq. 599, and Roberts v. Welch, 8 Ired. Eq. 287. But the defendants deny the statement that no part of the interest, due on these debts, has been paid, and, on the contrary, aver......