Temple v. Phelps

• Decision Date: 01 January 1907
• Citation: 193 Mass. 297,79 N.E. 482
• Parties: TEMPLE v. PHELPS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 297

79 N.E. 482

TEMPLE v. PHELPS.

Supreme Judicial Court of Massachusetts, Berkshire.

January 1, 1907

COUNSEL

Noxon & Eisner, for demandant.

Clarence P. Niles, for tenant.

OPINION

KNOWLTON C.J.

This is a real action in which the demandant seeks to establish a title to certain land. He acquired the title through a foreclosure of a mortgage under a power of sale. By agreement of the parties the case was tried before a jury on the single issue, 'Whether at the time of the foreclosure of the mortgage given by George L. Phelps to Mary E. Phelps, there was a breach of the condition of the mortgage.' This instrument 'was dated August 27 1888, was in the usual form of power of sale mortgages, and was given to secure the payment of seventy dollars to the said Mary E. Phelps each and every year during the term of her natural life.' It was foreclosed by a sale of the premises on February 17, 1896.

An important question arises on the charge of the judge in regard to the burden of proof. He said to the jury; 'When the defendant comes in and says that he has paid, or as in this case, when he comes in and says that he has complied with certain conditions, the compliance with which would prevent the plaintiff from maintaining his action, the burden of proof shifts over on to the defendant to establish that particular proposition.' He further instructed them that if the tenant satisfied them by a fair preponderance of the evidence that his mother, the mortgagee, had been paid in full all that was due her under the mortgage up to the time of the foreclosure, there was no breach of the condition, and the foreclosure would be void, and the tenant would be entitled to a verdict. But if the defendant failed to satisfy them of that fact, then there was a breach of the condition and the demandant would be entitled to a verdict. To this part of the charge the tenant excepted.

It is clear that, to establish his title, the burden of proof was on the demandant to show that there was a breach of the condition of the mortgage at the time of the foreclosure otherwise the attempted foreclosure would be of no effect. Rogers v. Barnes, 169 Mass. 179-184, 47 N.E. 602, 38 L. R. A. 145; Burke v. Burke, 170 Mass. 499, 49 N.E. 753; New England Mutual Life Ins. Co. v. Wing, 191 Mass. 192, 77 N.E. 376. Strictly and technically this burden did not shift during the trial, even if evidence was introduced which made a prima facie case in favor of the demandant. But when a prima facie case is made in favor of a party at a trial, he is entitled to recover unless affirmative evidence is introduced to meet this prima facie case. Where the evidence relied on to meet the prima facie case is an independent fact which, if established, controls the case, and, if not established, is of no effect, the result is practically the same as if the original burden of proof changed. Unless the particular fact is established, the prima facie case prevails. It fairly may be said, therefore, that the burden is upon the party relying upon the particular fact to prove it. When existing overdue indebtedness is shown a cause of action is proved, and a subsequent payment in discharge of it is a particular fact in avoidance, which must be pleaded and proved in order to meet the claim of liability. In such a case it may well be held that the burden of proof is on the defendant; but if the question is whether there was a failure to pay a debt when it became due, the burden of proof is on the plaintiff who claims the money. If he produces a promissory note, or other evidence of indebtedness, which ordinarily would be given up if paid at maturity, he thereby makes a prima facie case which entitles him to recover unless something is shown to meet it. If evidence is introduced tending to show payment at maturity, and this is the only defense, the question logically would seem to be whether, on the whole evidence, the plaintiff shows that the debt remained unpaid after it became due, so that a cause of action accrued.

Where a suit is founded upon an alleged breach of a bond or recognizance given to secure the performance of an act, it is distinctly held that the burden of proof is on the plaintiff to show a failure to perform. Blake v. Mahon, 2 Allen, 75; Toll v. Merriam, 11 Allen, 395; Thornton v. Adams, 11 Gray, 391. In the last of these cases the court declined to express an opinion as to whether the rule in regard to the burden of proof would be the same if the instrument was a bond or a mortgage given to secure the payment of money. In principle there is no logical distinction, as to how far the plaintiff should go to show a liability, between a case where the breach consists of a failure to pay a sum of money and one where the breach is a failure to perform any other act. We think it plain that in an action of contract founded on an alleged breach of the condition of a bond to pay money, or of a mortgage to secure the payment of money, the burden of proof is upon the plaintiff who alleges the breach.

In the case last cited it is said, although the remark is not involved in the decision, that the production of such a bond like the production of an overdue promissory note, would be prima facie evidence of nonfulfillment of the contract. We doubt the correctness of this statement. A bond or mortgage to secure the payment of money is not usually given up by the holder on the performance of the condition. A mortgage is commonly recorded, and possession of the original instrument,...