Amanda Buckmaster, Administratrix, &c., Appellant, vs. George Kelley and others, Respondents, 15 Fla. 180

RANDALL, C. J., delivered the opinion of the court. The appellant was appointed by the court of ordinary in Georgia in 1866 as administratrix of the estate of her husband, Edward J. Buckmaster, who died in that year, and brought two suits in equity in the Circuit Court of Duval county for the foreclosure of two several mortgages. One of the suits was upon a mortgage executed December 3, 1S53, by George Kelly and wife to ■ Buckmaster, to secure the payment of a note of Kelly of $1,200, due four months after date, and covered an undivided one-half of twelve acres, upon which was a mill.

In this suit Alexander Wallace, R. Dorman, R. Iiicks and the heirs of Jed Erye and others were defendants. The other suit was for the foreclosure of-a mortgage, executed by John E. Lambeth to Buckmaster, covering an undivided one-fourth of the same twelve acres, to secure the payment of two notes dated July, 1, 1854, for $1,058.33, and $1,128.33 respectively, due May the 1st, 1855, and May 1, 1856. Lambeth was the only defendant. The first named bill was answered by Dorman, Wallace and the heirs of Erye.

Wallace and Erye’s heirs answered that they were in possession of the property as purchasers in good faith, and had purchased upon advice that the title was good, and'allege that the mortgage and notes of Kelly were paid and satisfied. The suit upon this mortgage was commenced in April, 1873. No answer was filed in the suit against Lambeth. By stipulation of counsel the two suits were consolidated. In the suit upon the Kelly mortgage the complainant prayed that the interest of Wallace might be partitioned and set off to him, together'with his improvements.

Wallace and others had built a mill on the property in place of the former mill covered by the mortgage, which had been burned before he purchased. They also pray for a partition before sale. Upon the pleadings and testimony the court decreed that the Kelly notes and mortgage were paid and satisfied; that the undivided one-fourth, covered by the Lambeth mortgage,, be sold to satisfy the Lambeth notes, and that commissioners be appointed to partition and set off the one-fourth, in severalty, to be sold. From this decree the complainant appealed.

The defendants Wallace and Frye rely upon the lapse of time and other circumstances connected with the Kelly' mortgage, as presumptive evidence that it is satisfied by payment. The note became due April 3,1854, and the bill was filed April 15, 1873, being fully nineteen years. After the execution of the mortgage by Kelly to Buckmaster, Kelly, a short time before the money became due, to wit: February 26, 1854, executed another mortgage for $3,738.50 to Mary L. Wooten; which latter mortgage was, foreclosed in 1856, and Mrs.

Wooten became the purchaser, and after-wards conveyed to Hicks, one of the defendants in this suit upon the Kelly mortgage. Wallace, in his answer, asserts that the Kelly ■ mortgage was satisfied out of the money raised on the Wooten mortgage. The' testimony discloses also that after 1853, Buckmaster removed with his family to Georgia, and resided there until 1866, when he died. Mrs.

Buckmaster testifies that at some time after removing to Georgia, she heard her husband speak of his mortgages in Florida, including the Kelly and Lambeth mortgages, as existing mortgages which had never been paid, cancelled or foreclosed, and in connection had heard him say that the only mortgage he ’ had in Florida, which had been paid or foreclosed, was one held against a house and lot of Mr. Decottes.1 She remembers to have seen papers, among the papers and effects of E. J.

Buckmaster, as late as about 1875, marked, “ Papers in the business of Buckmaster, Timanus and Kelly,” or words to that effect, but never examined them. Since her attention was called in 1878 by E. I. Wheaton to the Kelly* note and mortgage, the subject of this action; she has carefully and diligently searched for said papers, presuming the original note and mortgage were among them, but failed to find them, and therefore believes that they were lost or destroyed.

There was no testimony showing that any interest had ever been demanded or paid on this note and mortgage, nor that any attempt had ever been made to foreclose or collect the money. Kelly left Florida after 1856. He and Timanus owned the former mill . on the premises, and it is inferred from the testimony that Kelly, Timanus and Buckmaster were jointly interested in the mill, and that Buckmaster sold his interest to Lambeth.

Wheaton testifies that in 1856 he saw the note and mortgage executed by Kelly, in Kelly’s possession, in' his, Wheaton’s office, in Jacksonville, where Kelly called to settle some rent with Judge Pearson, the note and mortgages being among Kelly’s papers, though he says he did not open and read the mortgage, but saw the endorsements on the back of it. Mrs. Buckmaster testifies that Wheaton came to her to obtain permission to foreclose these mortgages, and did not intimate that either of them had been paid. Mr.

Ledwith testifies that Wheaton, who commenced the suits as plaintiff’s attorney, told him, on turning the suits into the hands of Cooper and Ledwith, that he knew of no reason why the money should not be collected on foreclosure. The first question made by appellants is upon the admission of Wheaton’s testimony, he having been plaintiff’s attorney in • the commencement of the suits, and afterwards being a witness and attorney in behalf of the defendants, Wallace and Frye. This general objection is not tenable.

There is no reason why any fact, material to the issue, may not be shown by either party by the testimony of an attorney on either side, provided the facts proposed to be proven were not obtained by him in the confidence of attorney and client. It is not shoym in the testimony that Wheaton disclosed any material fact which was communicated to him in such confidence. His testimony, therefore, should be received upon the same footing as the testimony of other witnesses. The next error alleged is, that the court found and decreed that the Kelly mortgage and note were paid and satisfied.

Here it will be observed the period of nineteen years had elapsed after the mortgage debt became due before suit. The doctrine, that after the lapse of twenty years a jury might presume a bond to be paid, was first laid down by Lord Hale, and in.this he was followed by Lord Holt, who held that if a bond be of twenty years standing, and no demand proved, or good cause shown for so long forbearance on solvit ad diem, he should intend it paid. The same doctrine was afterward held by Lord Raymond, in the case of Constable vs. Somerset, (reported in 6 Mod., 22.) In Rex vs.

Stephens, 1 Burr., 434, Lord Mansfield says there was not any direct and express limitation of time when a bond should be presumed to have been satisfied; the general time, indeed, was commonly taken to be about twenty years; but he had known Lord Raymond to leave it to a jury upon eighteen years. And in Hull vs.

Horner, (1 Cowp., 109,) he said the jury might presume the debt to have been discharged where interest did not appear to have been demanded' or paid-for sixteen years; but if a witness is produced to the contrary, as by showing the obligor not to have been in solvent circumstances, or a recent acknowledgment of the debt, the jury must say to the contrary. In Darwin vs. Upton, (2 Saunders R., 175, C.,) the same judge says, the jury may presume the debt to be discharged if no interest appears to have been paid in sixteen or twenty years. And in' Oswald vs. Leigh, 1 T.

R., 272, Lord Mansfield said there was a distinction between length of time as a bar and where it was only evidence of it; the former was positive and the latter only presumption, and that in case of a bond it might be eighteen or nineteen years. Lord Ellenborough, in Colsell vs. Budd, (1 Camp., 27,) says there must be a lapse of twenty years, or a less time, with some circumstances to strengthen the presumption, and very slight evidenceis necessary. The Supreme Court of New York, in Clark vs.

Hopkins, (7 Johns., 556,) refused to allow a judgment to be entered upon a bond and warrant of attorney after the lapse of eighteen years. The same court, in Jackson ex d. Martin vs. Pratt, (10 J. R., 381,) Kent, C. J., says, where no possession had been taken under a mortgage, nor any interest paid, nor steps taken to enforce it for nineteen years, it was held not to be a subsisting outstanding title, and that a jury might well presume it satisfied, without auxiliary circumstances. In Blake vs.

Quash, (3 McCord, Law R., 340,) the court held that fourteen years, without demand of payment, or interest paid upon a bond, the attorney of the obligee residing in the immediate vicinity of the obligor meanwhile, and the attorney having a reputation for vigilance in like cases, raised a presumption of payment. DeSaussure, chancellor, in Winstanley vs. Savage, (2 McCord Chy., 438,) says : “ The court is not exact as to twenty years. It is not a statutory provision, but an equitable application of the principle to cases long delayed.

And if there have been great neglect and lapse of time, and great mutations of the property, the court will not lend itself to support such stale claims.” On appeal the decree was affirmed for the reasons given by the chancellor.

The general rule has come to be settled that in a suit iipon a bond, the lapse of twenty years without demand- or payment of interest will raise a presumption of payment, and in order to rebut this presumption it must be shown affirmatively that the money has not been paid, -and that if a long period, less than twenty years,.has elapsed, some other circumstances must appear tending to the conclusion or raising the pre..sumption that it has been paid'; and there is no precise rule or quality or quantity of evidence prescribed.

Each case must rest upon its own circumstances and address itself to the reason of the tribunal. In the case at .bar, we find that E. J. Buckmaster, the mortgagee, took a mortgage upon the undivided interest of Kelly in the real estate, to secure the payment of a promissory note of twelve hundred dollars, payable in four months .after date. This was in 1853. The mortgagee was evidently a man of some business capacity, and was apparently careful in the conduct of his affairs. He received mortgages upon other real estate in the .same locality for considerable sums —thousands of dollars.

His mortgages were carefully drawn and placed on record. One, at least, of the mortgages was ■collected or foreclosed. Soon after the coming due of the Kelly note or mortgage, Buckmaster removed to Georgia, and we hear nothing more of the matter until a little over nineteen years afterwards the administratrix of tlie mortgagee is informed by Judge "Wheaton that the mortgage is of record and not cancelled. Forthwith she sets about searching for it among the papers of the deceased and fails to find it or any trace of it.

She then remembers that she had at some time after her husband’s death seen a paper or papers marked, “ Papers in the business of Buckmaster, Timanus and Kelly,” or similar words. She had never opened them, for she does not know what papers they were. As Buck-master, Timanus and Kelly had formerly had business transactions together,'we cannot necessarily presume that this package contained a note and mortgage given by Kelly to Buckmaster.

It is not shown that Buckmaster in his lifetime, took any especial care of these papers, and the administratrix, during seven or eight years of her administration after'her husband’s death in. 1866, has not seen, known or heard anything of such note and mortgage, nor' had she ever seen them, so far as she shows by her testimony. She does-not say that she had ever seen them- either before or since her husband’s death. Iier testimony is given in such manner.that she is evidently a person of intelligence and'business capacity.

She had an attorney living near her in Georgia, with whom she and Judge Wheaton conferred in 1873-It seems exceeding strange that Mr. Buckmaster, between April, 1854, when the note became due, and 1866, when he died, should have held notes amounting to thousands of dollars past due, (which, by law, would be barred by the-statute of limitations long before the late war,) and never-taken any steps to collect either principal or interest, or that some time during that period his wife should never have seen them if they were in existence, or that she had never heard .of any efforts to collect the money.

And it is quite as strange that from 1866 to the present time, while she has been the administratrix of the mortgagee, and having his effects in her possession, she has never found any such papers or any memorandum relating to them even to prompt her to make inquiry into the matter with a view to protecting herself and her family and enjoying the.fruits of a collection. She says in her bill, and reiterates in her testimony, that the-note and mortgage have never been in her possession, and are-lost.

However honestly she may make this declaration, we can scarcely realize how she can safely aver that they are “lost,” if she has never seen*them and has no evidence of' their existence; but the best of evidence of their non-existence is the fact that her husband left no such valuable papers among his effects, so far as she knows.

It is true that she says that some time during his life-time she heard her husband “ speak of his mortgages in Florida, including the Kelly and Lambeth mortgages, as existing mortgages,, which had never been paid, cancelled or foreclosed (language more like that of a lawyer than of a woman,) and yet,. as administratrix, she has made no effort to enforce this' mortgage, which she says her husband spoke of as having <c never been paid, cancelled or foreclosed.” As a prudent woman, so reminded by the recollection of her husband’s words, and aided by counsel, she would have done something towards ascertaining the condition of this important matter.

As a prudent man, Mr. Buckmaster would naturally have taken some steps towards collecting this money, if it tad not been paid, especially as it appears the money was to be paid in a short time (four months) from the date of the note ; and especially also, considering that the mill then upon the premises was afterwards burned, and the value of the property thereby greatly diminished, thus also hazarding the prospect of collecting the enhanced amount of interest added to the principal, the maker of the note having, also, as appears, gone to parts unknown after the year 1856.

The most plausible, and indeed, under all the circumstances, the only reasonable solution is, that the Kelly note was paid. And the fact that Kelly, a very short time before the note became due, executed a mortgage upon the same moiety of the property to Mrs. Wooten for a larger amount, strengthens the answer of Wallace, and the testimony of-Judge Wheaton, in his impression that the .Buck-master mortgage was paid off out of the proceeds of the mortgage to Mrs. Wooten, and that' Judge Pearson (who collected a claim for rent against Kelly.) was the attorney for Mrs. Wooten, and also the attorney for. Mr.

Buckmaster generally in his business. “ Erom the tone of the conversation,” Wheaton says, “ I was led to believe that a portion of the money-borrowed by Kelly from Wooten was used in payment of the Buckmaster mortgage, Pearson representing Wooten in'relation to that mortgage,” and “ Pearson represented Buckmaster generally in his business.” Counsel for appellant insist that Wheaton, having, been contradicted by Mrs. Buckmaster and by Mr. Ledwith in regard to conversations had with them while Wheaton was attorney of Mrs. Buckmaster, is not a credible witness. It is unnecessary to discuss this question.

The conclusion that this mortgage debt is paid is arrived at independently of Wheaton’s testimony, but the circumstances detailed, as we have said, go to strengthen the theory that it was paid out of the proceeds of the Wooten mortgage, that having been executed a short time before the Buckmaster money became due, and as the Kelly note to Buckmaster was on • short time, the strong probability is that it was expected to be promptly paid, and as we never hear more from Buckmaster on the subject, the conclusion is legitimate that he received his money when he expected it The note and mortgage are not produced in evidence, nor is there proof of their-loss or their absence accounted for by the complainant otherwise than by showing’ that they are not and never were in her possession, and that she never had any personal knowledge of their existence.

Mr. Justice Sutherland, delivering the opinion of the court in Jackson ex dem. vs. Sockett, (7 Wend., 94,) says that the statute of limitations having run on the note, and that statute being founded in part, at least, or, he might say, principally upon the presumption of actual payment, and the difficulty of proving it from lapse of time, though secured by mortgage, the jury may properly conclude payment, the mortgage not containing any covenant to pay, but being merely a security. This was concurred in by those eminent jurists, Chief Justice Savage and Justice Nelson.

Without fully endorsing this doctrine, which has not been sanctioned in some other States, (see Belknap vs. Gleason, 11 Conn., 160,) it is a strong argument that the note nineteen years over due has been paid. The third ground of error is, that the court decreed that a partition be made of the premises, and that one-fourth of the twelve acres, by admeasurement, be sold to satisfy the Lambeth mortgage, which is a mortgage of an undivided one fourth.

The complaint upon the Kelly mortgage prays, among other things, that partition be made of Wallace’s interest, and that it be set off to him, and the parties in that suit stipulated and agreed that the premises could be partitioned without inconvenience or injury. There is no prayer, however, for partition in the bill of complaint upon the Lambeth mortgage, and there is no answer in the suit against Lambeth. We do not see how it is practicable in this suit, brought to foreclose a mortgage,1 to make a partition. A suit for partition should not be joined with one for a foreclosure.

The manner of proceeding in the suits is entirely different in the matter of process, parties, pleadings, issues and decree. There are cases in whieh a decree should direct portions of an entire mortgaged property to be first sold in order to save equitable interests, as where a part of" the property has been purchased from the mortgagor subsequent to the execution of the mortgage, and this is a very familiar rule. The bill is defective as for a partition, because it fails to show who are all the parties interested in the entire tract, of land, and so does not lay a foundation for a final decree of partition.

The decree binds only the parties before the court. ■ All the parties interested in the estate are necessary .parties in partition, and it is very evident that in foreclosing a mortgage upon an undivided share, the court cannot determine the rights of all the parties in the whole. Some of the defendants in this suit are even at issue between themselves as to their titles.

This suit was brought while the “code of procedure” was in existence, but it will be found that such a joinder of causes of action is not provided for. (See § 117.) The provision of the code on this subject is' substantially a repetition of the ancient rule. The practical difficulty is that the court cannot determine in one proceeding all the issues that must legitimately arise in both causes. The remedy by partition should precede the sale on a decree of foreclosure ór follow it.

The consent of the parties to join these incompatible causes of action cannot avoid the difficulty. ■ It is claimed .that Wallace and other defendants have erected valuable mills upon the land, having purchased under the belief and upon legal advice that their title was good, and therefore they ask the protection of the court. - There need be no difficulty about this matter.

The partition preceding the foreclosure would doubtless have thrown the mortgage upon that portion set off to thé mortgagor, and after foreclosure and sale the purchaser would stand in the right of the mortgagor as a tenant in common with other owners. If there be parties who have made valuable improvements upon portions of the property which may be set off in a partition, under circumstances which entitle them to protection, the court of equity will protect them. (1 Hilliard on Mortgages; 13 ; 10 John. R., 414; 1 Barb. R., 500; 2 Sandf. Ch.

R., 98.) The joinder of two causes of action upon the two mortgages, by the consolidation of the two suits, is somewhat anamolous. The mortgages are given by different parties, upon different shares or portions of the property ; the parties defendants in the suits have no common interests. There are several necessary parties in one case, and but one in the other.

As the parties have consented to the consolidation, however, we leave them as we find them: The decree of the court as to the Kelly mortgage is affirmed, except that if the mortgage be cancelled of record it should be done by an order directing the clerk to enter the cancellation. The decree as to the Lambeth mortgage is affirmed, except as to the proposed partition. The cause is remanded, with directions to the Circuit Court to reform the decree in accordance with this opinion. Each party will pay one-half the costs of this appeal, no costs besides disbursements to be included.