Rhone v. Keystone Coal Co.
Rhone v. Keystone Coal Co.
Opinion of the Court
Opinion by
. This proceeding was a scire facias sur mortgage. The Keystone Coal Company gave its mortgage to secure, a bond in the sum of $12,000, but by-payments the indebtedness was reduced to $8,000, prior to the date, when the writ of scire facias was issued. It appears from the record that the mortgage which bears date May 8, 1889, recites that it was given to secure the payment of a bond, payable not at a certain fixed date, but at such time as the board of directors should determine. The original bond and mortgage have been lost and could not be produced at the trial. In their statement of claim, the plaintiffs averred distinctly that the bond and mortgage: were due and payable. At the trial they offered in evidence the record of the mortgage, and made proof of the loss of the original bond and mortgage. They also showed the assignment. At the request of counsel for plaintiffs the court affirmed a point, as follows: “The mortgage on which suit is brought having been given to secure payment of a bond therein referred to and bearing even date with .the mortgage, viz: 8th May, 1889, for $12,000, and it not appearing in evidence in this case that any date was fixed in said bond as the date of maturity thereof, the bond being lost, under the evidence as presented in this case, there arises a legal presumption that the bond had become due and payable and collectable prior to the date of the institution of this action of 1907, after a lapse of eighteen years from the date of the bond and mortgage.” We see no error in the affirmance of this point. The indebtedness was admitted, and the defendant company had made partial payments which reduced the amount due on the bond to $8,000. This appears from another point, which was affirmed by the. trial judge, as follows: “Under the uncontradictéd evidence in this case, there was unpaid on said bond and mortgage, on the fifth dáy of February, 1900, the sum of $8,000, with interest from December 1st, 1899, and it not appearing that any payment on account, thereof has
Reference
- Full Case Name
- Rhone, Trustee v. The Keystone Coal Company
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- Contracts — Bonds—Time of payment — Presumption—Set-off— Statute of limitations. 1. Where no time is specified in a note or other obligation, for the payment of money, the parties are presumed to have intended that the money should be payable immediately. 2. A debt, which on its face appears to have been barred by the statute of limitations, cannot be used as a set-off, without evidence to take it out of the statute. 3. In an action of scire facias sur mortgage where it appeared that the bond and mortgage were payable, not at any fixed date, but at such time as the board of directors of the mortgagor should determine, and the action was instituted eighteen years after the date of the bond and mortgage, the trial judge did not err in charging that after such a lapse of time the presumption was that the bond was due and payable and that the burden was upon the defendant to show that it was not payable; and in giving binding instructions for the plaintiff when defendant did nothing to meet that burden. ■ 4. ■ In such case, it was not error for the court to exclude evidence tending to show a set-off, based upon the alleged liability of one of the assignees of the mortgage to the mortgagor, where it appeared that such alleged liability, if it existed, was barred by the statute of limitations.