Van Marter v. McMillan

• Decision Date: 15 October 1878
• Citation: 39 Mich. 304
• Court: Michigan Supreme Court
• Parties: George Van Marter v. Alexander McMillan

39 Mich. 304

George Van Marter v. Alexander McMillan

Supreme Court of Michigan

October 15, 1878

Submitted June 14, 1878

Appeal from St. Clair.

Foreclosure. Defendant appeals.

Decree affirmed. Complainant entitled to costs.

Mitchell & Avery for complainant.

Frank Whipple for defendant.

OPINION

Graves J.

March 9th, 1874, Van Marter filed this bill to foreclose a mortgage executed to him by McMillan June 24th, 1869. The mortgage was made to secure several promissory notes of even date given by defendant to complainant and the bill claimed that the amount called for by seven of these notes was still unpaid and that the sum represented by three was due. They were respectively for twenty-five dollars and interest at ten per cent and one was payable November 13th, 1871, and one in each year thereafter until the whole seven should be due. The others secured by the mortgage were earlier and seem to have been transferred to one Jenks and paid by McMillan. No one questions that they have been regularly satisfied.

McMillan answered and admitted giving the mortgage and seven notes as stated in the bill. He however denied the accuracy of the statement of the amount due and alleged that an error in computation had occurred, and next denied that any sum was due complainant on the notes and averred that pursuant to an agreement and understanding between the parties, defendant had fully paid the notes to complainant "at sundry times in goods, moneys, chattels, work and labor to the amount of two hundred dollars and upwards."

A sworn answer being waived there was no oath. May 9th, 1874, the usual general replication was filed and the parties proceeded to produce evidence. September 12th, 1874, the taking of testimony was commenced and Van Marter then testified. The production of evidence was concluded April 13, 1876, at which time he testified again. June 14, 1877, the court on full hearing decreed in favor of complainant and rejected the defense.

The decree declared that there was then due $ 288.91 and that November 13, 1877, there would be due the further sum of $ 25 and interest thereon at ten per cent from November 13, 1876 amounting to $ 27.50.

The objection that the ownership of the demand or whatever of it had matured when the bill was filed, was in complainant's mother, cannot be sustained. It rests entirely upon complainant's statements on the stand, and all of his statements on the subject must be considered together. Some were made when he was first sworn and others nearly two years later and just at the close of the examination of witnesses and on the last occasion he stated that since his previous deposition the arrangement with his mother had terminated. His exposition of her relation to the claim is not lucid. But upon the whole it causes the impression that she was never legal or equitable owner of any of the securities.

In regard to the defense set up by answer not many words are needed. There is no claim of set-off. The position is that the demand has been cancelled by payment under a somewhat singular arrangement. The giving of the securities is admitted and the complainant holds and produces them. They have not been actually taken up and prima facie remain in force as valid demands in complainant's ownership. They presumptively make out the cause of action and this consequence is not liable to be overcome by slight or not very probable reasons. It is for the defendant to make out his defense and prove that he paid the mortgage and notes as he asserts in his answer. He is required to show distinctly the special agreement and the transactions under it constituting the alleged payment and satisfaction. No agreement in writing is produced, and it is conceded that none was made. If there was any understanding, it must have been verbal, and whether there was or not depends pretty much entirely on the testimony of the parties. It seems that the mortgage in suit was given in place of one which contained a mistake, and the account given by defendant as a witness of this agreement, and the shape of it, is this: "He said seeing I had been so honorable with him, on the night of the 24th of June, 1869, in presence of his wife, that he would take his payments in tin ware or anything, if it was only ten cents at a time, and I agreed I would do so; and when he called on me I did so, and whatever I paid him was to be endorsed on the 13th day of November in each and every year;" and further on he says the complainant also told him "if I would keep it in an account he would do the same and allow as much interest on the account as the mortgage called for."

The complainant fully and explicitly denies that he ever made the arrangement described or any other of the kind, and swears positively that he never entered into any arrangement with defendant or had any understanding with him that the mortgage might be paid...