Opinion
January 6, 1960.
March 15, 1960.
Mortgages — Evidence — Presumptions — Payment — Lapse of 20 years — Sufficiency of rebuttal evidence.
In this action to foreclose a mortgage, in which the court below ordered the plaintiff to satisfy the mortgage of record; and in which it appeared that the mortgage was executed in 1928 as a second mortgage, that the mortgagee building and loan association became insolvent and voted to liquidate voluntarily in 1933, that thereafter no demand for payment of either principal or interest was ever made, that the mortgage was written off as a loss in 1935 and that during the period from 1935 to 1958 no action was taken to foreclose the mortgage or demand any payment; and there was no evidence of any declaration or admission by the mortgagor or other party in interest to rebut presumption of payment, it was Held that (1) there is a presumption that the mortgage on which no claim has been made for more than twenty years has been paid and (2) the presumption of payment may be rebutted only by clear, satisfactory and convincing evidence of nonpayment or by proof of circumstances tending to negative the likelihood of payment and sufficiently accounting for the delay of the creditor and (3) the plaintiff's evidence did not meet the required standards of proof.
Argued January 6, 1960. Before JONES, C. J., BELL, MUSMANNO, JONES, COHEN, BOK and EAGEN, JJ.
Appeal, No. 97, Jan. T., 1960, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1958, No. 1603, in case of Northeast Alumni Building and Loan Association v. Margaret S. Schreiber. Decree affirmed.
Same case in court below: 20 Pa. D. C.2d 101.
Action to foreclose mortgage. Before GUERIN, J., without a jury.
Adjudication filed directing that mortgage be marked satisfied, plaintiff's exceptions to adjudication dismissed, and decree entered. Plaintiff appealed.
A. Walling Levin, for appellant.
Joseph W. Marshall, Jr., with him Duane, Morris Heckscher, for appellee.
The final decree entered in this case is affirmed on the adjudication filed by Judge GUERIN of the Court of Common Pleas No. 4 of Philadelphia County, published in 20 Pa. D. C.2d 101, at appellant's cost.