Long v. Rogers ( 1886 )

Sherwood, J.

It appears from the record in this case that the defendant John R. Long, on the twelfth day of April 1880, owned and was in possession of 200 acres of land in the county of Kent, and on that day sold and conveyed to his son, the complainant, eighty acres of the land for the sum of $1,200 ; that the purchase price was paid by complainant, in $200 in work before then performed for the father, and $1,000 in a mortgage given by the complainant to his father upon the land purchased, payable in three years from the date of the purchase, with interest. On the same day the purchase took place the complainant left the county of Kent, and shortly after the State, and was absent three years. During this time the defendant John R. Long remained in possession of the eighty acres of land, and used it, taking the rents and profits and paying taxes thereon, the same as before he made the sale thereof to his son. On the return of the complainant, in the spring of 1883, he was not prepared to pay the mortgage, and the father was desirous of raising the money upon it." It was then all due, and the complainant claims it was then agreed between him and his father that the use of the land by the latter should be set off against the accrued interest on the mortgage, and that the mortgage should stand for the $1,000. This arrangement John R. Long denies, and avers in his answer that he put valuable improvements upon the land, and paid taxes thereon, amounting to more than the value of the use of the land. On the eighth day of May, 1883, John R. Long loaned of the defendant Margaretta Rogers $1,000, giving his notes therefor and securing the payment thereof by an assignment ■of the mortgage, guaranteeing therein that there was then due upon the mortgage, of principal and interest, the sum of $1,000. On the fourth day of February, 1881, John R. Long made-another assignment to the defendant Mrs. Rogers, the same purporting to be for the accrued interest upon the mortgage up to the time the first assignment was made. This assignment purports to be absolute. The mortgage and these several assignments were duly recorded; and on ¡the thirteenth day of February, 1S81, the. defendant Mrs. Rogers commenced a foreclosure of the mortgage by advertisement, to obtain payment of the interest claimed to have been transferred to her under the last-named assignment, and which complainant claims was paid to John R. Long in the use of the farm as before stated, and so agreed upon between the father and son.

The bill in this case was filed to enjoin the foreclosure proceedings. The case was heard on pleadings and proofs, and a decree wás entered therein by Judge Montgomery, wherein he finds that the interest due upon the mortgage was fully satisfied prior to the tenth day of April, 1883, and enjoined the further prosecution of the foreclosure proceedings. From this decree the defendants appeal.

We think the decree was right, and it must be affirmed. ‘The equities between these parties rest entirely upon the ^decision of questions of fact, which the circuit judge possessed superior advantages for determining. He has made his finding thereon in the decree, and which, after a careful examination of the record, we* fully approve. That finding is against the defendants, and the decree will therefore be affirmed, with costs.

Campbell, C. J., and Morse, J., concurred. Champlin, J., did not sit.