Hippard v. Rebhan

<p>Abstract of the Decision.</p> <p>1. Mortgagers, § 433*-—when running of statute of limitations on mortgage tolled by payment on note. Where a payment has been made upon a note by the maker thereof, or by his authority, the statute of limitations will not run against the mortgage securing the note until the lapse of ten years after the payment.</p> <p>2. Mortgages, § 433*—when running of statute of limitations on mortgage tolled. The mere indorsement of payments by debtor on notes secured by mortgage by the creditor without some affirmative act or authorization by the debtor is insufficient to toll the statute of limitations on the mortgage.</p> <p>3. Evidence, § 40*—what is effect of unexcused failure to produce material documentary evidence. The failure of the defendant in an action to foreclose a mortgage to produce checks, the dates of which correspond with the dates of alleged payments on a note claimed by defendant to be unauthorized credits not tolling the statute of limitations on the note and mortgage, warrants the presumption that the production thereof would be unfavorable to the defendant.</p> <p>4. Payment, § 29*—when evidence sufficient to show authorized application of interest on note. On a bill to foreclose a mortgage, the defense to which was barred by the statute of limitations, but where it appeared that payments of interest were indorsed upon the note within ten years of the date of the commencement of the action at the time that checks were given by defendant for such amounts and deposits for such amounts made in a bank by the creditor, evidence held sufficient to show that the payments were made by defendants to pay the interest on the note.</p> <p>5. Mobtgages, § 433*—when lien of mortgage kept alive by payments by one joint debtor enforceable against mortgaged premises. While a personal payment on a joint and several note by one of two joint debtors without the consent or knowledge of the other will not operate to bind the other so as to authorize a new promise taking the case out of the statute of limitations, still a mortgage given to secure such a note will operate as a lien on the mortgaged premises so long as the payments of the note may he enforced against either joint debtor and until the debt is extinguished, and it is immaterial that one of the mortgaged tracts belonged to one debtor and the other to the other debtor.</p> <p>6. Appeal and ebbob, § 1327*—when presumed that court heard evidence authorizing appointment of receiver. Where a decree authorizes the appointment of a receiver, it will be presumed that the trial court heard evidence authorizing his appointment, especially in absence of the showing of a reason why the court erred in the appointment.</p> <p>7. Appeal and ebbob, § 1414*—when finding of court not disturbed as against weight of evidence. A finding of a trial court will not be disturbed as against the weight of evidence where it is supported by clear evidence.</p>