Abbott vs. Godfroy's Heirs. ABBOTT et al. vs GODFROY'S HEIRS. In foreclosing a mortgage against the heirs of a deceased mortgagor, the personal representative of the deceased is not a necessary party, unless the personal estate is sought to be charged with a deficiency in the mortgaged premises to pay the debt. An agreement in writing, intended by the parties to give a lien on real estate for the payment of a debt, though not witnessed as required by statute, to convey real estate, is good as an equitable mortgage.1 The territory comprising the present state of Michigan remained under the control and jurisdiction of the British government until the year 1796; and the ordinance of 1787, though made before that year, was not in force while the territory was under such jurisdiction. Where the bill charges an instrument to be a mortgage, asks to have it foreclosed as such, and contains a prayer for other or further relief, the court may declare it to be a mortgage, although there be no special prayer for that purpose in the bill. [179*] Lapse of time, in connection with nonpayment of interest, and continued possession of the mortgagor, unaccompanied by any effort on the part of the mortgagee to enforce payment, is not a legal, but an equitable or presumptive bar, and the presumption may be rebutted by circumstances. What circumstances will rebut the presumption, must depend upon the facts in each particular case. In cases of presumptive bar from lapse of time, the rule as to subsequent disabilities is different from that of the statute of limitations. Under the statute, the party must bring himself within the exceptions of the statute; whereas, in cases of presumptive bar, he may show any cir cumstance that outweighs the presumption. On June 18, 1789, the ancestor of the defendants gave a mortgage, payable on the 28th August 1790. The mortgagce died in 1790, but adminis tration on his estate was not granted until 1835, and the year following a bill was filed to foreclose the mortgage. Held, the presumption of payment arising from the lapse of time was overthrown by the fact that there was no one, from the death of the mortgagee, in 1790, until the administration was granted in 1835, who could receive payment of the money and discharge the mortgage. NOTE.-Equitable mortgage. Where claim too uncertain to constitute an equitable mortgage, Payne ». Avery, 21 Mich. 524. Intent to create a lien, sufficient as a basis for an equitable mortgage, Peckham v. Haddock, 36 Ill. 39; Roberts v. Rickards, id. 399; Kloch v. Walter, 70 id. 416; Wright . Troutman, 81 id. 374. - Limitation and stale claim, Pollock v. Maison, 41 Ill. 317. Statutes do not run except with possession, Mills v. Lockwood, 42 id. 112. Abbott vs. Godfroy's Heirs, APPEAL from the Court of Chancery. A bill was filed in that court by complainants in January, 1836, to foreclose an alleged hypotheque or French mortgage given by G. Godfroy, the defendants' ancestor, on the 18th June, 1789, to one Duperon Baby, to secure the payment of £396 Os. 3d., New York currency, on the 28th August, 1790. The bill stated the making of the instrument before a notary public, and that without any acknowledgment it was recorded in the county of Wayne in the year 1798; the death of Duperon Baby in the year 1790, and that no proceedings to take out administration on his estate were had until 1835, when administration, on the 12th September of that year was granted to Jean B. Baby, who on the 30th of the same month assigned the instrument to complainants. It further stated that the money mentioned in the instrument was unpaid, principal and interest; that G. Godfroy died in the year 1833, and that he frequently recognized the existence and legal validity of the instrument. The court below dismissed the bill on the ground of the staleness of the demand, and that complainants had failed to establish and prove any facts or circumstances to take the case out of the operation of the general rule of presumption of payment from lapse of time. From this decree the complainants appealed to this court. The case made by the pleadings and evidence is fully stated in the opinion of the court. #Fraser & Davidson, for appellants. Backus & Sibley, for appellees. [180*] By the Court, MILES, J. On the 18th day of June, 1789, Gabriel Godfroy executed an instrument in writing, before a notary public and in the presence of a subscribing witness, by which he acknowledged himself to be justly indebted to one Duperon Baby in the sum of £396 Os. 3d., for value received from him, and which he promised to pay to him on the 28th day of August, 1790, with interest at six per cent. And in order to secure the payment of this sum, Godfroy by the same instrument assigned and mortgaged a farm in the township of Abbott vs. Godfroy's Heirs. Springwells, on which he then resided, and declared that the same should remain mortgaged to Baby, his heirs and assigns, as a security for that sum and interest until payment in full should be effected. Duperon Baby died in 1790; and in 1835, in virtue of a special act of the legislature of this state, administration of his estate was granted to Jean Baptiste Baby, his son, who on the 13th day of September of that year assigned this instrument to the complainants, and on the 27th day of January, 1836, they filed a bill in chancery to foreclose it as a mortgage. Gabriel Godfroy died in 1833, and his administrators were, with his heirs, made parties defendants to the bill; but after answer put in by one of the administrators, the bill was voluntarily dismissed as to them. The remaining defendants now insist that the administrators are necessary parties; and the complainants having dismissed their bill as to them, cannot have a decree. the In England, except in cases where, on account of the insufficiency of the security in the mortgage, the bill prays an account of personal property as well as a sale of the land, personal representative is held not to be a necessary party; and in such case, not on account of a prayer for a sale of the land, but because the party, in addition to the land, seeks to appropriate the personal assets to the payment of the debt. The bill being only to foreclose the equity of redemption, the heir having the equity is the only necessary party. Edw. on Parties, p. 91, sec. 41, and the cases there referred to. 1 Smith's Ch. Pr. 541. Though the result of a proceeding in chancery in [181*] England to en*force the lien is generally a strict foreclosure, and although we in practice substitute a sale, yet the difference in the result does not change the character of the proceeding, which in both cases has in view the satisfaction of the debt. If this bill sought to appropriate the personal assets of the estate to that object, the administrators, as representing these assets, would be a necessary party, having an interest. Abbott vs. Godfroy's Heirs. 4 Blackf. 381. This case having been decided under a statute similar to our own, is in point. It was held, the admin-1 istrator was an improper party to a bill of foreclosure. The provision of our statute, making real estate assets for the payment of debts gives no preference over specific liens before created on the land. Mr. Edwards, in his treatise on Parties in Chancery, before referred to, says, "in New York some practitioners make the executors parties, and join the heir with them, but this is incorrect; the heir is the only necessary party:" p. 91, sec. 41. It is next objected, that this instrument is not a mortgage at common law, and that it was made after the Ordinance of 1787 was in force in this territory; and that since that time, lands in Michigan could only be sold or incumbered by a deed, signed, sealed and attested by two witnesses. Ordinance of 1787, sec. 2. If this is a good equitable mortgage, that is an answer to at least the first of these objections; and as to the latter, it may be replied, as a matter of history, that the territory comprising this state remained under the control and jurisdiction of the British government until the year 1796, and that the ordinance, though made before, was not in full force until after that time. The agreement in writing in this case is express in its terms; the intention of the parties is most manifest. The contract is not to be performed, but is executed. The meaning and intention was to create a lien on the land, to secure the payment of a preexisting debt. The transaction is not obnoxious to the objection that parol evidence is necessary to establish the claim, for the instrument itself states its object; and however much the policy of enforcing, as an equitable mortgage, the deposit of title deeds with a parol agreement to perfect a legal security, may have been questioned, here no objection of that character exists; the intention is evident, and all the court have to do is to supply the legal deficiencies. See 3 Powel on Mortgages, 1049, and the *cases there [182*] cited, in which express written agreements have been declared equitable mortgages. VOL. 1.-15 225 Abbott vs. Godfroy's Heirs. But it is also insisted, that we cannot declare this instrument to be a mortgage because the complainants have not so prayed. The bill expressly charges that this instrument was intended as a mortgage, and asks to have it foreclosed as such, and contains the usual prayer for other or further relief. In a case where the defendant has submitted to answer, and where the case made by the bill warrants this decree, we see no objection to it for the reason assigned. The next ground of defense is a presumption of payment arising from lapse of time. The defendants claim that this is a stale demand and for this reason a court of equity will not enforce it, but will presume it has been satisfied. One of the heirs sets up this defense in his answer; the other defendants, some of whom are minors, have put in only a general answer, denying all knowledge of the matters stated in the bill. Lapse of time, in connection with nonpayment of interest and a continued possession of the mortgagor, unaccompanied by any effort on the part of the mortgagee to enforce pay ment, would warrant a presumption of payment of the debt. This would operate as a satisfaction of the mortgage, and thus give repose to the title. This, however, is not a legal bar but an equitable, a presumptive one, depending upon a a principal coexistent with the earliest jurisdiction of a court of equity, without aid from any act of parliament; and courts of equity, by their own rules, give great effect to the length of time. Smith v. Clay, 3 Bro. Ch. 640, in note. All the authorities agree that this presumption may be rebutted by circumstances. 4 Munf. 532; 4 Har. & McHen. 328; 16 Johns. Ch. 214, and the cases there referred to. And although there is some eonflict as to the point whether the defendant must insist upon the bar, or whether the plaintiff, in a case bringing him within the rule, shall be required to state the circumstances which repel the presumption, the better opinion seems to be, that such circumstances as entitle the party to relief, notwithstanding the lapse of time, should be stated in the bill. Foster v. Hodgson, 19 Ves. 180; 9 Pet. 415. |