#### Jones’s Adm’r v. Comer’s Ex’or.

April, 1834,

Richmond,

(Absent Brooke, J.l

Mortgages — Satisfaction—Presumption from Lapse of Twenty Years.* — Upon a bill by mortgagee against mortgagor to foreclose, satisfaction or release presumed from tbe lapse of 20 years, such presumption being corroborated, rather than rebutted, by other circumstances.

Same — Same—Same—flow Relied on. — Such presumption ought regularly to be relied on in the answer, not by way of plea ; but if relied on by plea, this irregularity shall not deprive the mortgagor of the defence ; per Brookenbbough, J.

Same — Executed with Fraudulent Design — Foreclosure. — It seems, that in case of a mortgage executed for a fictitious debt, with fraudulent design to deceive and hinder mortgagor’s creditors, both mortgagor and mortgagee being parties to the fraud, though the title might pass to the mortgagee at law, a court of equity should not give him its aid to enforce the mortgage.

Thomas Comer, by deed dated the 3rd August 1786, and duly recorded in the county court of Amelia, — reciting that he was justly indebted to Richard Jones in the sum of ^520. and 20,000 pounds of tobacco, payable the 1st January 1788,— mortgaged to Jones, eight slaves and their future increase, all his stock of horses &c. and household furniture, to secure due payment of the debts.

*Not long after this mortgage was executed, James Henderson & Co. exhibited a bill against Comer and Jones, in the county court of Amelia in chancery, shewing, that Comer was indebted to them in the sum of *£29. 9.*7. setting forth the mortgage of the 3rd August 1786, executed by Comer to Jones, and praying, that the mortgaged subject should be sold, and that the surplus of the proceeds, after paying whatever should be found justly due to Jones, should be applied to the satisfaction of the debt due to them. Jones, in his *137answer to that bill, said, that the sum of ,£520. in the mortgage mentioned, was justly due from Comer to him; and as to the 20,000 pounds of tobacco, that Jones had become surety for Comer to David Ross for the same, but that Ross having since taken Comer’s bond for the value of the tobacco in money, Jones insisted, that he was thereby exonerated from his responsibility as surety for this debt, and this was a question then in litigation between Ross and himself. And Comer in his answer, said, that his mortgage to Jones was executed for a good and valuable consideration, namely, for moneys actually due from him to Jones, as well as to indemnify him against suretyships he had incurred for him. In August 1791, the county court made a decree, appointing commissioners to settle and ascertain the exact amount of Jones’s demand, and to sell the mortgaged subject, and out of the proceeds to pay Jones whatever should be found due to him, and out of the surplus to pay the debt due Henderson & Co. It appeared, that no proceedings were had under this decree. The plaintiffs Henderson & Co. dismissed the suit in March 1794.

Comer remained in undisturbed possession of the mortgaged subject, thenceforth, until his death, which happened in or about the year 1811, and the slaves with their increase (which was numerous) and the other mortgaged subject, came to the hands of his executor.

In August 1812, Jones exhibited a bill against Comer’s executor and his widow, who were his legatees, in the county court ■of Nottoway in chancery, setting forth the mortgage of August 1786; alleging, that the debt of £520. therein *mentioned, was still due (subject to a credit of £144.) with interest &c. referring to Comer’s answer to the bill of James Henderson & Co. to shew, by his own declaration on oath, there made, that the debt was fairly and justly due to him ; and praying a foreclosure of the mortgage, and a sale of the subject to satisfy the debt due him with interest.

The executor, by way of plea, relied on the lapse of more than twenty years from the date when the debt secured by the mortgage was due and payable, and the presumption of payment or satisfaction thence arising, as a bar to the relief prayed. And, both by plea and answer, he referred to the decree of the county court of Amelia of August 1791, in the suit of Henderson & Co. against Jones and Comer; and insisted, that that decree was a complete foreclosure of Comer’s equity of redemption of the mortgaged subject; that Comer having held the mortgaged subject, which was all personal, more than five years after his equity was extinguished by that decree, the statute of limitations was a bar to any demand of Jones for the mortgaged subject; and that as to any demand which Jones might set up on that decree, that was barred also by the statute of limitations, by analogy to the limitation of writs of scire facias or debt on judgments, namely, ten years.

Mrs. Comer, the widow, in her answer, stated, that the debt of £520. in the mortgage mentioned, was altogether fictitious; and she stated the pretexts devised by her husband and Jones, to represent the debt as a real one; that the mortgage was a contrivance suggested by Jones himself, to protect Comer’s property from his just creditors, he being at the time much embarrassed with debt, though Comer’s object was only to protect it from executions, under which it might be sacrificed, until he could raise funds to pay his just debts, which he afterwards happily accomplished.

The truth of Mrs. Comer’s answer was, in the opinion of the chancellor and of this occur, fully proved.

To rebut the presumption of satisfaction arising from the lapse of time, Jones relied, 1. on the decree of the county court of Amelia of August 1791, in the case of Henderson *& Co. against him and Comer; and 2. on the deposition of two witnesses, testifying that Comer not long before his death, made acknowledgments from which the existence and justice of the debt might be inferred. This evidence is fully stated and considered, in the opinion of Brockenbrough, J.

Jones died pending the suit in the county court, and it was revived by his administrator.

The cause having lingered long in the county court, was at length removed by consent of parties, to the superiour court of chancery of Richmond. The Chancellor, upon the hearing, dismissed the bill with costs, from which decree Jones’s administrator appealed to this court.

The attorney general and Stanard, for the appellant.

Johnson, for the appellee.

*

Mortgages — Satisfaction—Presumption from Lapse of Time. — On this subject, the principal case was cited with approval in Snavely v. Pickle. 29 Gratt. 39 ; Pitzer v. Burns, 7 W. Va. 75 ; *foot-note*to Ross v. Norvell, 1 Wash. 14.

See generally, .monographic *note*on “Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197.

The principal case is also cited in Hollingsworth v. Sherman, 81 Va. 672.

BROCKENBROUGH, J.

This is a case of very extraordinary aspect in many respects. I am very strongly inclined to the opinion, that the mortgage was entirely fictitious and fraudulent; that Jones the mortgagee was at least in pari delicto with Comer the mortgagor; and that although, in a court of law, he probably might have maintained his action of detinue on the deed, which passed to him the legal title, yet when he comes into equity to foreclose the equity of redemption, he ought to be told, that in such a fraudulent and scandalous transaction, the condition of the defendant is a better one than his. I have not thought it necessary, on this occasion, to go at large into this doctrine, particularly as it has been very little discussed at Ihe bar. I shall content myself with referring to the opinion of Coalter, J., in Starke’s ex’ors v. Littlepage, 4 Rand. 375, which appears to me to contain a great deal of sound doctrine. I shall take up the case on other grounds.

Admitting that the mortgage was executed to secure a bona fide debt, the next question is, whether, according to the proofs in the cause, we ought not to refuse any relief to the plaintiff, on the ground, that, from the great lapse of time, the debt should be presumed to be paid or released? *The mortgage was executed in August 1786, the debt was made payable on the 1st January 1788, and the bill was not filed till August 1812, a period of *138twenty-six years from its execution, and of more than twenty-four after the debt became due. Twenty years is a sufficient period to authorize the presumption of payment in debt on bonds; and where it appears that the debt had not been satisfied, the jurjr under particular circumstances, and on account of the great lapse of time, may presume it was released. Blanshard on Lim. 93; Washington v. Brymer, Peake’s Ev. app. No. 4. So too, in mortgages even on land, the right of redeeming after twenty years is presumed to have been abandoned, and a fortiori it applies to mortgages of slaves: and if the creditor does not seek to foreclose the equity of redemption within that time, a strong presumption arises that the debt has been paid, or the deed released. Ross v. Norvel, 1 Wash. 14.

It is objected here, that as the presumption is not relied on in the answer of the executor of Comer, it cannot now be taken advantage of, in the argument of the cause. To this it may be answered, that he relied on the lapse of twenty years in his plea as a bar, and in his answer on the statute of limitations. Both of those defences were inadmissible in the form which they assumed, but they afford sufficient evidence that the defendant relied on the lapse of time to defeat the claim, and the plaintiff knew well that it was relied on, as he has taken two depositions at least, to repel the presumption. Surely, we ought not, in equity, to insist on this matter being specially pleaded, when we know that even at law it is relied on under the plea of payment. In Ross v. Norvel, the answer did not rely on time as an obstacle to the redemption of the mortgaged slaves, but the objection was taken by the counsel in the court of appeals. The court did not take an exception for that cause, but went into an argument to prove, that not five, but twenty years, was the period within which a redemption should be permitted. I think, then, that we may enter upon the question whether in this case the debt may be presumed to be paid, or the mortgage released.

*The mortgagee remained quiet without bringing a suit, for more than twenty-four years; in the mean time, however, a creditor of Comer to a small amount, filed his bill in equity against Comer and Jones the mortgagee, requiring the foreclosure of the mortgage, that the property should be sold to discharge it, and the surplus applied to the satisfaction of his debt. A decree was made in August 1791, according to the prayer of the bill, and in March 1794, the bill was dismissed by the plaintiffs. This of itself affords the strongest presumption, that as that plaintiff was paid his debt, so the mortgage was discharged, because according to the terms of the decree, the mortgage was to be paid before the plaintiffs could receive the amount of their debt. After that period, there is some evidence to prove that Jones forbad the sale of Comer’s property when it was taken in execution, and this is relied on by the appellant, to prove that the mortgaged debt was still unsatisfied; but, to my mind, it only proves, that Jones was guilty of a fraud on Comer’s creditors, and that he was willing to deceive them, by setting up a mortgage which had been previously discharged. This fraud cannot avail him, and ought not to be countenanced in equity. After these proceedings, Jones still remained quiet, till after the great lapse of time before mentioned, and till after Comer had sunk into his grave.

Eet us now advert to the evidence, which is relied on to repel the presumption of satisfaction arising from time, and the circumstances just mentioned. This consists of the depositions of Elizabeth Jones, and Peter Bland, who testify to acknowledgments made by Comer, some short time before his death. This evidence is liable to the objection, that it relates to mere casual conversations, which occurred fifteen and thirteen years before the depositions were taken. Mrs. Jones’s evidence is liable to the further objection, that it relates a conversation, which, she says, happened during an illness before the one of which Comer died. Now, it is proved by another witness, that Comer was not ill, at any time, for five or six years before his last illness. The attack made on the credit of Bland has not been successful. He *is proved to be a man of good character. Admitting, however, that Comer did make the remark ascribed to him, it ought not to be deemed sufficient to repel the presumption arising from the before mentioned circumstances. Bland wished to extract from Comer some information respecting the validity of the mortgage. He told Comer, that he had been under the impression, that the deed was a fraudulent one. Comer replied, that “he was mistaken; that the deed was given for a valuable consideration; that Jones was justly entitled to the property conveyed by the deed.” It may have been on valuable consideration, and yet the debt subsequently discharged. And it does not appear, at what time Jones was justly entitled to the property, whether at the time the deed was executed, or at the time he was speaking. If the former, it was not incompatible with the fact, that the title had been subsequently released. It was, moreover, a loose remark; for the mortgagor had possession of the property, and had a right to redeem it; how, then, could he say that Jones had a just title to it? I do not think that a jury would attach any weight to an admission so made, and under the circumstances then existing.

This repelling evidence is counterbalanced by another fact, which goes strongly to fortify the presumption arising from time, and from the decree of 1791. I refer to the fact of Jones’s embarrassed circumstances. Several witnesses prove, that he was oppressed with debts for twenty or thirty years before his death. He could not keep his property together, says one of them, without using the assets of the numerous estates which came to his hands. It is not at all probable, that a man so situated would permit his debtor to retain for a space of twenty-four years, so large a debt, without calling him to account; he must have been conscious, that Comer could prove satisfaction or a release. I think the decree should be affirmed.

CARR, J.

I have given this record a *139most careful examination, and have seldom risen from such a task, with stronger convictions than I feel, that there is nothing due to *Jones, and that we ought to affirm the decree. With respect to Starke v. Littlepage, it does not seem to me necessary to say any thing. It is the decision of a divided court of three, which we never consider as authority. I think the opinion of judge Coalter, in that case, was right; and I cannot find any thing in the cases, cited by our late worthy brother Green, to authorize the rule he has drawn from them. Strictly speaking, I think the plea in this case, of the former suit and decree, is a good bar; for the dismissal of that suit by the plaintiffs at that stage, could never affect the order, so far as it related to the settlement between Jones and Comer: that was res adjudicata. There are cases enough to shew, that such a suit is a good bar; but I do not think it is worth while to touch the point. The great matter is, that the mortgage and the debt, and the whole machinery, is a fiction. This is a matter of fact, and need not be commented on. I think the decree should be affirmed.

CABELL, J. I am for affirming the decree.

TUCKER, P.

I am entirely satisfied, from the facts appearing in this case, that the mortgage was fraudulently contrived to cover Comer’s property from the demands of his creditors. In this aspect of the case, although I do not question the decision of Starke v. Littlepage, which rests upon the express provision of the statute, that a fraudulent deed shall be held good between the parties, yet I cannot agree that a court of equity should open its doors to a man who is guilty of the duplicated fraud, first of aiding to deceive the creditors of his friend, and then of defrauding that friend by keeping the property to himself. If he has the legal title under the statute, let him get the property at law, if he can. Let him even by a recovery there exclude the defendant from redemption. I would not extend relief to the fraudulent mortgagor, unless upon mature reflection, I should be unable to get over the authority of Austin’s adm’r v. Winston’s ex’or, 1 Hen. & Munf. 32. I incline to the opinion, expressed by the court in Brackenbury v. Brackenbury, 2 *Jac. & Walk. 390, that, in an illegal transaction like this, in which both parties are guilty of a combination to defraud others, a court of equity should give aid to neither. I have diligently searched, and I find no case in which a fraudulent mortgagee, whose mortgage was a fraud on others, has been entertained on a bill to foreclose. What does the plaintiff ask here? not surely to give him the property, but, by an equitable proceeding, to foreclose the defendant, and to quiet him thereby from future demands. What right has he who has been party to a gross fraud, to ask protection from the harassings of the partner in his guilt? Hay more, what right has he to expect the court of equity to extend the statute of limitations from five years to twenty, in his behalf? ' What merits of his entitle him to this indulgence? Yet, if he is entertained here, presumption of payment or of release cannot be raised under twenty years, whereas if he sues at law he is barred by five years possession adverse to his claim.

It is true, the cases are very strong to the point, that a party shall not be received to set up a defence at law, which is founded upon his own fraudulent conduct. Montefiori v. Montefiori, 1 W. Blacks. 363. I have, however, met with no case in equity, in which this principle has been applied to the protection of a plaintiff, upon whom a gross fraud has been fixed. So far from it, that there are cases to be found, which sustain the principle of Austin’s adm’r v. Winston’s ex’or, in relieving a particeps criminis, because he is not in pari delicto; Osborne v. Williams, 18 Ves. 379. Surely, no case can arise in which the disparity is greater than this, where the debtor commits the fraudulent act under the grinding pressure of his necessities; while the false friend whom he associates with him, has no such duress operating upon him, and by his conduct has excluded even the suspicion, that he was betrayed into injustice to others, by the amiable weaknesses of our nature. Standing even thus, the debtor would not be in pari deiicto; but when to this the party adds the double fraud of betraying him whom he affected to serve, his guilt is immeasurably ^'greater than that of the unfortunate victim of the res angustas domi. To such a plaintiff I do not think the law permits us to minister.

Decree affirmed.