
    McMurray v. McMurray et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 8, 1892.)
    1. Mortgages—Payment of Bond and Mortgage by Mortgagor.
    A mortgagor remained in possession of the bond and mortgage for 15 years. After his death, the mortgagee assigned the bond and mortgage, and his assignee brought an action to foreclose the same. The mortgagor during his life-time was at all times solvent and able to discharge the mortgage, and no effort was ever made to collect the, same from him during the 15 years. Held, that the mortgage must be presumed to have been satisfied.
    8. Witness—Competency—Transaction with Decedent.
    Code Civil Proc. § 839, forbidding a person to testify in his own behalf as to any transaction had by him with a deceased person in a controversy with a person claiming under such decedent, will render a mortgagee incompetent to testify that payment of the mortgage was never made to him by the deceased mortgagor.
    Appeal from special term, Dutchess county.
    Action by Gerald McMurray, assignee, against Andrew McMurray and others, children of a deceased mortgagor, to forclose a mortgage assigned after the mortgagor’s decease. The assignor was asked at the trial whether he had ever been paid the consideration of the mortgage, and whether he had ever received any money on account of the same, which questions were excluded. Code Civil Proc. § 829, provides, upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event, or a person from, through, or under whom such a party or person interested derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator, or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Argued before Dyehan and Pratt, JJ.
    
      George F. EscTibaeh, (G. A. C. Barnett, of counsel,) for appellant. Horace D, Hufcut, for respondents.
   Pratt, J.

This action was brought to foreclose a mortgage given May 26, 1873, by Bartholomew McMurray and wife to Andrew McMurray to secure the payment of $2,000 upon 26th May, 1878, interest to be paid annually, June 1st, each year, at the rate of 7 per cent. A bond for such sum accompanied the mortgage, with condition as above. The complaint shows that the mortgagor and his wife were each deceased at the time of the trial, and the defendants in the action were the children of the mortgagor. The mortgagor died three or four years since, and subsequently his wife died. The defendants are all infants, and children of the mortgagor, except defendant Edmonds, a tenant, and Richard Barrett, who is the grandparent of the infants, and their general guardian. It appears that Bartholomew McMurray was in the habit of stopping at the Hew York Hotel, in the city of Poughkeepsie, and that some 15 years or more prior to the trial (1891) he (the mortgagor) gave to Mrs. Gallagher, the landlady, some papers to keep for him. She kept them for 15 years or more, and when she heard the mortgagor was dead sent them by mail to the mortgagor’s widow at Dover Plains, and when she died Richard Barrett, her father, found them in the house. The mortgage and bond were in form assigned by Andrew McMurray, the original mortgagee, to Gerald McMurray, February 11, 1890,-who is the plaintiff in this action. The great lapse of time that the mortgagor had been in the undisputed lawful possession of this bond and mortgage, and that no effort had ever been made to collect either interest or principal by the mortgagee, afford a very high degree of evidence that, if the mortgage and bond ever had any validity, it had long been satisfied. Giles v. Baremore, 5 Johns. Ch. 545; Jackson v. Sackett, 7 Wend. 94; Hill v. Gale, 1 Ala. 275; Levy v. Merrill, 52 How. Pr. 360; Jackson v. Pratt, 10 Johns. 387; Clark v. Hopkins, 7 Johns. 556. The question put to the mortgagee clearly called for testimony of a personal transaction with the deceased mortgagor, and fell within the prohibition contained in section 829 of the Code of Civil Procedure. The evidence in this case points to but one conclusion, to-wit, that, the mortgagor and his wife being dead, an attempt is made to collect this bond and mortgage from their children, who are assumed to be entirely ignorant of the circumstances surrounding the transaction. The conduct of the mortgagee is utterly inconsistent with any honest claim in this suit. Bergen v. Urbahn, 83 N. Y. 49. He had no bond and mortgage for 15 years, and never made any claim for principal or interest during all this time, although, so far as appears, the mortgagor was amply responsible. Judgment affirmed, with costs.  