Park v. Peck

The Chancellor :—The evidence is sufficient to rebut the presumption of payment arising from the lapse of time-The mortgage was given in 1803, and payable the succeeding year. The mortgagor was a brother of the complainant, and continued poor until his death, in 1810 or 1811. In the latter year his administrator acknowledged the mortgage was unsatisfied, and sold the premises under the surrogate’s order subject to the lien thereof. The evidence is sufficient also to show that Peck, the purchaser, frequently recognized it as an existing incumbrance and promised to settle it.

These admissions and promises were made long prior to the judgment of Hart and Card against Peck, and therefore are evidence against them as well as himself. There must be the ordinary decree for a reference to ascertain what is due on the mortgage, and for a sale on the coming in of the master’s report.

The complainant asks costs against the judgment creditors who have put in their answers, and put him to the proof of the existence of the lien. If a defendant, against his better knowledge, sets up an unjust defence and puts the complainant to extra costs when the premises are insufficient to pay the whole amount, such extra costs ought to be charged on the defendant personally. But this is not a case of that description. These judgment creditors had no knowledge *that the mortgage was an existing, incumbrance; and from the complainant’s neglect to enforce it for more than twenty years after the amount was due, they had a right to presume it paid, and to put him to prove the contrary. He has no personal claim against them for the costs in such a case.