Kline v. McGuckin

The Yioe-ChanceIíLou.

By a decree heretofore made in this suit, pursuant to the ■opinion in 9 C. E. Green 412, a deed of conveyance absolute on its face, bearing date April 23d, 1860, and made by Edmund B. McGuckin to his brother, James B. McGuckin, was adjudged to be a security in the nature of a mortgage. The amount due on it did not sufficiently appear, and leave was therefore given to the parties to produce further evidence in regard to it. Two of the witnesses originally examined liave been recalled, and the settlement of the amount, which .has been for some time suspended with the expectation of *434 other witnesses being produced, is now submitted for decision» without argument.

The evidence before me is general and indeterminate. The-case is one where doubts and uncertainties should operate against the mortgagee and not in his favor. His mortgage is an open one, and be is entitled to recover nothing under it,, except what is affirmatively made to appear with reasonable certainty of proof. His inability to establish, the amount with accuracy, is attributable to his own carelessness or-neglect. The general estimates made by himself and his-brother-in-law, Sherwood, both of whom are interested parties, are not supported by the testimony of his brother,. Edmund B., whose interest in the result, as the case stands, is less influential than theirs. It is clear that an indebtedness did exist at the date of the deed, and the best judgment I can form is, that it may be justly fixed at that time at the sum of $2000. That it was not less than this, appears from the testimony of Edmund, and though the testimony of James and Sherwood makes it nearly twice as much,.-I should not feel warranted, in view of the character of the proofs, in advising a decree for more than the amount above named. The error,, if any, ought to be against the mortgagee;

I will advise that the complainant be allowed to redeem, by the payment of $2000, with interest from the date oJ" the deed, or to sell the premises under his foreclosure suit, subject, to the lien of the deed thus defined.