Taylor v. Bernard

This is an action for foreclosure of a mortgage for $600, made in 1877, and both parties to it are dead. It was assigned by the mortgagee’s administrator to the plaintiff. The defense was payment in effect. The original parties to the mortgage were neighbors and friends, and dealt with each other as long as they both lived. The mortgagor kept a store, and the mortgagee dealt there continuously, and in 1883 the account appears to have substantially closed, by it appearing that the mortgagee owed the mortgagor on book account the amount of the mortgage. This was proved beyond question, so that, if the amount which the mortgagee owed the mortgagor could not be set off or regarded as payment pro tanto, the result would be to collect the whole amount of the mortgage, and leave the book account entirely unpaid, as the statute of limitations would cut it off. It is difficult to conceive, how any one can "maintain such a proposition in this case. We think the findings of the court below are just, and amply supported by the evidence, and that the conclusions of law naturally follow from the findings.

•The only question is as to the admissibility of the books. We think they were admissible under the proofs, and, taken with all the other proof in the case, established beyond all question the payment of the mortgage: All the circumstances surrounding the transaction point to the payment of this mortgage during the lifetime of the parties, and, even disregarding the evidence furnished by the- book of account, it looks very much as if the mortgage was regarded by both parties as settled and paid. When we take into consideration the relations of the parties, their course of. business, the facts that interest on the mortgage was'credited on the books of the mortgagor with the items of goods sold to the mort*526gagee, that no claim was made for so many years that anything was due on the mortgage, all point to the theory that the mortgagee permitted the mortgagor to pay off the mortgage by goods out of his store. No other reasonable construction can be placed upon their conduct. The decision below was just and right, and should be affirmed, with costs.