
    Anderson v. Culver et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Payment—Presumption—Possession oe Bond.
    In an action to foreclose, the inference of payment arising from possession of the mortgage bond by the purchasers of the mortgaged premises is rebutted where the hand shows no indorsement of payment of principal or interest, no satisfaction piece is shown to have been executed, no explanation is offered of the circumstances of the alleged payment, and the words “to the plaintiff,” in the allegation of payment, have been stricken out by defendants.
    Appeal from judgment on report of referee.
    Aclion to foreclose a mortgage brought by Catharine A. Anderson against Weeks W Culver and others. From a judgment of foreclosure and sale defendants appeal.
    Argued before Barnard, P. J., and Dykman, J.
    
      Sullivan & Cromwell, (Alfred Jaretzki, of counsel,) for appellants. Ship-man, Barlow, Larocque <£- Choate, for respondent.
   Barnard, P. J.

Weeks W. Culver, one of the defendants, on the 1st of July, 1881, executed a mortgage to the plaintiff to secure a loan to him by the plaintiff of $6,000. The mortgage was upon lands in Kings county, and was recorded 6th of July, 1881. The interest was payable half-yearly. On the 31st of July, 1883, Culver sold the lands to the defendants Thompson & Norris for $10,000, and they assumed the payment of the principal sum secured by the mortgage, and agreed to pay the same. This deed was recorded on the 2d of August, 1883. The plaintiff commenced this action to foreclose the mortgage, claiming the entire principal and the interest from July 1, 1886. Upon the trial the defendants Thompson & Norris produced the bond which accompanied the mortgage, and the sole question is whether the presumption of payment arising from its possession is rebutted by the proof. There were two answers, one put in by Culver and the other by Thompson & Norris. The Culver answer avers payment, and that the mortgage was “fully satisfied and discharged and canceled of record.” The Thompson & Norris answer avers that “they paid to the plaintiff the whole of the balance of money and interest thereon,” and that they received a satisfaction piece, which was filed in Kings county on the 10th of April, 1886, which was the day of the payment. The defendants rest entirely upon the production of this bond. No proof is given of the cancellation of the mortgage, and it must be assumed that it is uncanceled of record. The defendants Thompson & Norris on the trial amended their answer by striking out the words in their answer that the payment was made “to the plaintiff.” No information is given as to when the payment was made. There is evidently something which Thompson & Norris could make more definite in respect to this payment, and which is withheld. The payment presumably was not made to the plaintiff under the amended answer. To whom was it made? The bond has been withheld. The back, on which would appear the indorsements of interest or of principal, has been detached, and a new back, without a mark upon it, substituted. This new back was part of one apparently used by the plaintiff’s attorney, for the firm name is written and printed thereon. No explanation is given, Thompson & Norris, or some one for them, can explain where and how this payment was made. Was there a satisfaction piece, and where is it? AVho ■made the satisfaction certificate? If the plaintiff executed it, why is the answer altered so as to justify an inference that the payment was made to someone other than the plaintiff? In case she signed it, the payment was made to'the plaintiff. Thompson & Norris had the power to state the facts, and their omission to do so justifies an inference against their claim. Under the case as it now stands, the inference of payment arising from the production of the bond is rebutted, and the judgment should be affirmed, with costs.

Dykman, J., concurs.  