McMurray v. McMurray

17 N.Y.S. 657, 70 N.Y. Sup. Ct. 183, 45 N.Y. St. Rep. 2, 63 Hun 183, 1892 N.Y. Misc. LEXIS 438

Opinion

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.