Brownell v. Oviatt , 215 Pa. 514 ( 1906 )

Pee Cubiam,

One of the errors assigned is that the mortgage was admitted in evidence without the accompanying bond. If the bond had been paid, its payment would have been a complete defense to the suit on the mortgage, but the burden was upon the appellant to show that it had been paid. The appellee’s suit was on the mortgage — a cause of action separate and distinct from that on the bond — though both were for the same debt. In proceeding on either it is not incumbent on a plaintiff to show that the other has not been paid. In an action on the bond, when the holder produces it, there is a presumption that the mortgage has not been satisfied, and so in a proceeding on the mortgage against the land, there is a like presumption that the bond has not been discharged. The objection to the offer of the mortgage without the bond was properly overruled.

The real complaint of the appellant is that the jury were directed to find for the plaintiff. This direction could not have been withheld. The mortgage was, executed on September 1, 1888, to secure the payment of a bond for $1,898.81, payable in installments, the first, for $300, becoming due on January 1, 1884. On August 26, 1903, this scire facias was issued, and the law had raised no presumption of payment from lapse of time. A lapse of less than twenty years, if aided by other circumstances to support it as a presumption of payment, may be submitted to the jury as a ground for presuming the fact of payment: Moore v. Smith, 81 Pa. 182; but there were no other circumstances in this case tending to support the presumption of payment. On the contrary, as appears from the evidence submitted by the defense, the mortgage had not been paid. There was, however, evidence of an intention by Miller C. Stickles, the uncle of the appellant, to release the mortgage; but this intention was never executed, and he left no direction that it should be executed. When he died the mortgage remained an asset of his estate. This is the whole case, and while the appellant most naturally complains of her disappointment, the law cannot help her.

Judgment affirmed.