
    JESSE EVANS, SURVIVING EXECUTOR OF DAVID CAVALIER, DECEASED, v. MARy HUFFMAN ET AL.
    1. Á mortgage will be presumed paid if the mortgagee never entered, and there has been no foreclosure, nor payment of interest within twenty years.
    2. Semble. Insolvency of the mortgagor is not sufficient to overcome the presumption.
    3. Parties are confined to the case made by the pleadings, and evidence to facts not put in issue should not be read or taken.
    4. Testimony in disproof of a fact confessed by the pleadings cannot be considered.
    5. Would the absence of the mortgagor from the state for a portion of the twenty years, defeat the presumption of payment ? It seems not.
    Bill for the foreclosure of a mortgage, dated March 16th, 1819, given by John Huffman, since deceased, to David Cavalier, since deceased, to secure the payment of a bond of the same date, conditioned for the payment of $200, in one year from the date thereof, with interest, given by the said John Huffman to the said David Cavalier. The mortgage was acknowledged March 17th, 1819, and recorded the 27th of the same month. The bill was filed October 1st, 1841.
    On the 1st of January, 1886, John Huffman died, intestate and insolvent, (the bill states,) and no administration was ever granted of his estate. He left Mary Shorter, Ann Kline, wife of John Kline, and the other defendants, his children and heirs-at-law.
    David Cavalier died in June, 1825, leaving a will, of which the complainant and Mary Cavalier, widow of David Cavalier, were executors. The will was duly proved by them. In November, 1840, Mary Cavalier died, leaving the complainant surviving executor.
    The bill states that the whole principal sum, with interest from the date of the bond and mortgage, is due and unpaid; that John Huffman possessed the premises till his death, and that from the time of his death, the said Mary Cavalier and the complainant, as executors as aforesaid, or one of them, have been in possession of the premises ; and that the rents and profits have not been more than sufficient to pay the taxes, assessments, and necessary repairs levied and made thereon.
    On the 7th of February, 1842, a decree pro oonfesso was made against John Kline, Jacob Huffman, and John Huffman, absent defendants. On the 6th of April, 1842, five of the defendants, viz., Mary Shorter, Ann Kline, wife of John Kline, Robert, Michael and Stacy Huffman, put in their answer, admitting the giving of the bond and mortgage, the acknowledgment and recording thereof, the death of the mortgagor, intestate, and that no administration of his estate had been granted ; stating that, as to the death of David Cavalier, and his will, and the death of Mary Cavalier, they know nothing, &<:.; admitting that John Huffman, the mortgagor, until his death, enjoyed the premises, by tenants living thereon under him, he not living thereon himself; but denying that Mary Cavalier and the complainant, as executors as aforesaid, or either of them, have been in possession of the premises since the death of the mortgagor; and submitting that the said executors could not have been in possession without a recovery of such possession by some proceeding at law or in equity, or the assent of the mortgagor or his heirs ; and denying that such recovery was ever had, or such assent given. And they say that, even if the said executors did enter on the premises, they did so as trespassers ; and they charge that, since the death of the mortgagor, his children and heirs-at-law have possessed and enjoyed the premises. They submit that, on the ease made by the complainant’s bill, he is not entitled to the relief he seeks, his testator and he having slept over their rights for more than twenty years ; and that the bond and mortgage have thereby become inoperative and void.
    They insist that the mortgage, having been given merely to secure the bond, ceased to have any legal effect as soon as the bond was satisfied, or by lapse of time, or other cause, could not be a lawful ground for the recovery of the money therein mentioned. That, after the lapse of sixteen years, the bond was, in law, presumed to be satisfied; and that the mortgage, given merely to secure the same, became, thereby, and consequently, inoperative, and of no effect. That, more than twenty years having elapsed between the date of the mortgage and the filing of the bill, and the said mortgagor, his widow and heirs, having possessed the premises during all that period, without claim on the part of the complainant or his testator, the complainant is barred, &c.; and they pray, that 'they may have the same benefit of these matters as if they were formally in pleading alleged.
    They say, as sustaining the presumption of law, that they are informed, and believe and charge that, about the summer of 1820, it was agreed between the said John Huffman and the said David Cavalier, that the said David should receive,'for coal charred on the premises, $50, to be applied towards payment of the bond; and that he received the said sum, and gave a receipt, stating that he had received it on the said bond ; and that the said David, about the same .time, bought of said Huffman a large quantity of pine timber then lying in logs, at $5 per 1000 feet, amounting to 30,000 feet; and that it was agreed between them, that the amount thereof should go towards the liquidation-of the said bond; and that the said David took and carried away the said timber, and thereupon gave to the said Huffman another receipt for $150, as so much further paid on said bond ; and that the said David, in the year 1831, rented twenty acres of land of said Huffman, at the yearly rent of $14 an acre, and that it was agreed between them that the rent should go to the payment of said bond, and towards payment of other demands which the said David had against the said Huffman after satisfying the said bond ; and that, thereupon, some time in the year last aforesaid, the said David gave a receipt stating that he had received $80 from the said Huffman, in payment of what remained due on the said bond, and that the residue, after paying off the said bond, was to go towards payment of the book account he had against the said Etuffman ; and that the whole amount due on the said bond was paid.
    That, prior to the giving of the bond and mortgage, Huffman was intemperate, and after that time gave himself up, in a great measure, to habits of intemperance; that the said receipts were seen in his possession about 1825; but that, after that time, he was, from his habits, entirely separated from his family, and was, at that time, and afterwards, from that cause, incapable of retaining any article or paper of value in his possession; and that the said John having, from that time to the time of his death, lived away from his family, and having died separated from them, the defendants are unable to produce the said receipts, and believe them to be lost, or to have fallen into unknown hands.
    That they are informed and believe and charge that the said David repeatedly, in his lifetime, stated that the said bond was paid offj and expressed his wish and anxiety to give up the said bond to the said Huffman, but that the said 'Huffman, after the said bond was paid off, was not living in the neighborhood of said David.
    That in the summer of 1824, more particularly, the said David stated that the said bond was paid off, and all his other accounts against the said Huffman ; and that the said David, on his death-bed, about four days before he died, expressed great anxiety to see the said Huffman, and give him up the said writings, and requested that the said Huffman might be brought to him, saying he was afraid that, after his death, they would fall into other hands, and be wrongfully set up against the said Huffman, but that the said Huffman not living near, the said David died without seeing him.
    That shortly afterwards, the said Huffman, hearing of the death of the said David, and taking with him Samuel Leeds and Asa Moore for witnesses, went to the late residence of the said David, and demanded the said bond and mortgage of his widow and executrix, saying they were paid off; and that the said executrix said she could not find them, but that they were paid, and that she would see if they were in the possession of the other executor — the complainant — and that she gave her word of honor and promise to the said Huffman, that the said bond and mortgage should be destroyed, and that the said executrix repeatedly afterwards stated that the said bond was paid off. And the defendants say they are ignorant, and have no knowledge or information of the other matters alleged or charged in the complainant’s bill, and not answered unto.
    Testimony was taken on both sides, and the cause was heard on the pleadings and proofs.
    
      
      J. C. Ten Eyck, for the complainant,
    cited Saxton 685, 694; 5 John. Ch. R. 553.
    
      H. W. Green, for the defendants,
    cited 1 John. Ch. R. 46; Ambler 645; 3 Bro. Ch. 291, 639, note; 2 Story’s Eq., § 1520, and note 2; 2 Ves., Jr., 11; 1 Phil. Ev. 119; 4 Burrow’s Rep. 1962; 10 John. R. 387, 417; 16 John. R. 214; Penn. R. 702; 2 Halst. Rep. 113; 3 Green’s Rep. 296.
   The Chancellor.

This is a suit for the foreclosure of a mortgage given March 16th, 1819, to secure the payment of a bond of that date, in one year, with interest. The bill was filed October 1st, 1841, twenty-one and a half years after the bond became due, by the surviving executor of the mortgagee. The mortgagee died in 1825, leaving a will. The mortgagor died in 1836, intestate, and no administration was taken of his estate. The executrix, Mary Cavalier, widow of the mortgagee, died in November, 1840.

The bill states that the mortgagor remained in possession of • the premises until his death, and this is admitted by the answer. It states that, from the time of the mortgagor’s death, the executors of the mortgagee, or one of them, have been in possession of the premises. This is denied by the answer.

Two grounds of defence are taken — first, the lapse of time, and the presumption of payment arising therefrom j second, actual payment.

Samuel Leeds, called for the defendants, testifies to the payment, and the mode in which it was made, and that, after Cavalier’s death, Huffman, the mortgagor, called on Mrs. Cavalier, the executrix, and demanded the writings, and that she told him she did not know where they were, but promised, when she fpund them, to destroy them, Leeds’ testimony has been attacked by the production of several witnesses, who testify that Leeds told them the mortgage had never been paid.

On the testimony in reference to actual payment, as it stands, subject to the evidence given in impeachment of Leeds’ testimony, the cause cannot be decided very satisfactorily. It may be said, however, that the depositions on this part of the case furnish proof of the wisdom of the statute of limitations. And on this part of the case, and in connection with what Leeds swears Mrs. Cavalier told Huffman, after Cavalier’s death, viz., that she would destroy the papers when she found them, and with the fact, that the widow and executrix lived more than twenty years after the bond became due, and that no suit was brought till after her death, it may be very properly asked why should the executors delay so long? Was Mrs. Cavalier unwilling to bring suit; and if so, why? If not, why did not the executors close the estate long before? Cavalier died in 1825, sixteen years before the suit was brought. Have they settled their accounts? Are they charged with this bond and mortgage? We have no information.

And in this connection it may be further remarked that Cavalier’s will says nothing of the bond and mortgage, or of the land covered by the mortgage. From the frame of the will, this, I think, is worthy of observation. He directs so much of his movable property as will pay his debts, to be sold, and the use of the surplus thereof he gives to his wife, for her life. He then makes seven devises of land, by description, gives three small pecuniary legacies, and then provides that if there should be any cash left, he gives it to, &c., and there is no other residuary clause.

It would be painful to decree a foreclosure after such a lapse of time, if from the testimony and the circumstances of the case, there be a probability of actual payment. It would be less painful to me, and more salutary, if the executors should suffer loss for their default. But whatever might be the conclusion of the court, if this were the only ground of defence, it is clear that if Leeds’ testimony can be relied on to prove any payment, it proves payment in full. If it ought to be considered as not entitled to credit on the question of payment, it must be rejected altogether as to that. This, (without referring, at present, to some matters to be hereafter considered,) would leave us simply the case of a bill to foreclose a mortgage after twenty-one and a half years, on which no interest has been paid.

I am of opinion that, under such circumstances, the mortgage should be presumed paid. I think the spirit of our statute »f limitations requires us to make the presumption. I concui in the views of the Chancellor on this subject, expressed in Wanmaker v. Van Buskirk, Saxton 693.

It is true the Chancellor there says he was not called on to establish the principle in that case, but it is evident from his reasoning, that if he could not otherwise have decided the case for the mortgagor, he would have given effect to the presumption. Indeed, he says, standing alone it would be tantamount to actual proof of payment.

The English cases and the cases in New York are reviewed in 5 John. Ch. R. 545, and the court there came to the conclusion that a mortgage is not a subsisting title, if the mortgagee never entered, and there has been no foreclosure, nor payment of interest within twenty years; that these facts authorize and require the presumption of payment, and that such presumption is founded in substantial justice and the clearest policy.

The force of the remark of Sir William Grant, in 12 Vesey 252, is shown in this case: The presumption does not rest on the belief that the payment has actually been made, but is raised, because the means of creating belief or disbelief, after such a lapse of time, are so little to be relied on.”

In this state, we have a statute providing that every action on any bond, &c., conditioned for the payment of money only, shall be sued within sixteen years after the cause of action accrues, and not after, unless a payment has been made within or after that period, and then within sixteen years after such payment, and not after. Whether or not it be an anomaly, as suggested by the counsel for the defendants, to hold, as seems to have been held, that twenty years shall be allowed for the foreclosure of a mortgage given to secure such bond, that is, four years after the bond thus secured ceases to be a cause of action, I do not now inquire; but the statute very fully apprises the courts that no scruples need be felt in raising the presumption of payment after twenty years.

But it was argued that this presumption may be overcome, and that the insolvency of the mortgagor is sufficient to overcome it; and the case of Wanmaker v. Van Buskirk was referred to for this position. The Chancellor, in that case, said that the presumption might be overcome, and that there were circumstances in that case of sufficient weight to destroy it. The mortgagor had married the daughter of the mortgagee, and had issue, and had died many years before, leaving his wife and children in possession; and they were not in a situation to pay either principal or interest; and to have exacted payment must have brought distress upon them. These were the circumstances which the Chancellor said were sufficient, in his mind, to repel the presumption. He said that insolvency had been held sufficient, but he does not so decide; nor was there any room for such a decision in that case.

I do not see that insolvency of a mortgagor is any good reason why a mortgage should not be foreclosed ; or any good reason why the mortgagee should permit the mortgagor to occupy the premises twenty years without paying any interest. But if I could think it was, the fact is not sufficiently shown in this ease. When was he insolvent? A warrant of attorney to enter judgment was annexed to the bond j and the money became due in 1820. Was not the property sufficient for the money? We hear of no other debt till three years thereafter, and that for only $300. How much was the property worth ?

.But it is contended that the mortgagee took possession of the premises within the limited time. If this be so, and can be made to appear in the cause, the presumption does not arise. Leeds was in possession before and at the time of the mortgagor’s death; and the complainant claims that he. went into possession under the mortgagee. Can this be shown, under the pleadings in the cause ? The bill charges that the mortgagor remained in possession till his death in 1836; and the answer admits it. This, then, is a fact not in issue between the parties. Parties are confined to the case made by the pleadings, and cannot examine witnesses or read evidence to facts not put in issue. It would be dangerous to allow a complainant, after answer filed, to changé his ground in his proofs. But if the evidence were admissible, it does not prove the fact. Leeds swears he went into possession under the mortgagor, and has remained in possession ever since. The evidence offered that Leeds, at times, said he was in under Cavalier, if it is to be relied on to prove that he really said so, can have no other effect than to weaken our belief of the fact he swears to. It is not substantive evidence ; it is no evidence of a fact; no evidence that he went in under Cavalier; and he swears he did not. But the evidence is inadmissible; a fact confessed by the pleadings cannot be disproved.

The bill charges that after the mortgagor’s death, in 1836, the executors, or one of them, took possession. This is denied by the answer, and there is no proof of it. Leeds was in long before, and has continued in possession ; and there is no evidence of his holding differently after the mortgagor’s death; or of his agreeing to hold after that under the exeoutors or devisees of the mortgagee.

We have a statute, passed February 21st, 1820, which provides that if any person against whom there shall be (among other causes of action) a cause of action on a bond for the payment of money only, shall not reside -in the state when such cause of action shall accrue, or shall remove from the state after it accrues, before the time of limitation (by the statute) shall expire, then the time during which such person shall not reside in the state shall not be computed as part of the period limited for bringing the action; and this act, it has been adjudged by our ¡Supreme Court, (2 Harr, 82,) applies to obligations made before its passage.

The idea of removing the objection growing out of the lapse of twenty yeafs, by proof of the mortgagor’s absence, does not seem to have occurred in preparing the cause for hearing. If it had, the proof of his removal from the state, and the time of his absence, between 1820 and 1836, (time after his death could not be counted) would have been more definite, if absence, on such removal, and for a sufficient length of time, could have been shown. But if the proofs were sufficiently definite to raise the point distinctly, the act is not, in terms, applicable tc a mortgage; nor is a mortgage, as it seems to me, within the spirit of the act. If our Court of Chancery had adopted the principle that a lapse of sixteen years should bar the foreclosure of a mortgage given to secure a bond, in analogy to the statute limitation of actions on bonds, it might, with some force, be argued that the period of absence or removal from the state should be deducted, in analogy to the act of 1820.

But the argument would not be conclusive, for the land cannot

remove.

Again : No opinion has been intimated in this court, that any period short of twenty years would bar a mortgage. The court has not acted on mortgages in reference to the statute limitation of actions on bonds.

On the whole, I am of opinion that the bill must be dismissed.

Decree accordingly.  