Simms v. Kearse

Citations

• 42 S.C. 43
• 20 S.E. 19
• 1894 S.C. LEXIS 22

Syllabus

<p>1. Presumption or Payment.. — Where the obligor of a bond, secured by mortgage, died twenty-four years before action brought, no admission made by him in his lifetime can affect the presumption of payment arising from lapse of time.</p> <p>2. Ibid. — Recording.—The record of a mortgage does not rebut a presumption of satisfaction after the lapse of twenty years, there being no subsequent admission on the record of the debt as still unpaid.</p> <p>3. Ibid. — Mortgages—Case Criticised. — There is no such trust relation on the part of the mortgagor towards the mortgagee as will prevent the presumption of satisfaction of the mortgage from lapse of time. An intimation in Thayer v. Cramer, 1 McCord Ch., 395, from which a contritry rule might be inferred, disapproved.</p> <p>4. Ibid. — Ibid.—Lien in Partition. — Where lands of an intestate were sold for partition under decree of court in 1859, on one and two years’ credit, the purchaser gave bond and mortgage to secure the purchase money, the sale was confirmed in 1860, and the officer directed to collect and distribute, the money when due, where no payment was made after 1859, and action was instituted in 1893, the bond and mortgage will be presumed paid. The execution of a mortgage did not divest the statutory lien under the act of 1791, but where a mortgage is given to a third person, the master of the court, the presumption of payment will run against this lien.</p>