Dubois v. Schaffer , 23 N.J. Eq. 401 ( 1873 )

The Chancellor.

The complainant alleges that a mortgage given to him by the defendants was canceled in fact and of record by his agent, he supposing, by mistake, that it was paid in full, when, in fact, there was a balance of $400 due on it. The bill asks to have the canceling done by mistake corrected and set aside, and for a decree to make the amount really due out of the mortgaged premises.

When a mortgage is canceled by mistake, or the canceling procured by fraud, the court will set aside and disregard the canceling so made or procured, and give relief upon the mortgage as if not canceled. The opinion in case of Dudley v. Bergen, in this court, ante p. 397, affirms that doctrine, and states the authorities upon which it is founded.

But for that purpose, when the relief is on the ground of mistake, the mistake must be clearly established. The agent of the complainant, if he is believed, clearly establishes the mistake, and he is confirmed by the admissions of the defendant to himself and to his brother. The mistake consists in crediting on the 1st of June, 1871, upon this mortgage, the sum of $400 paid upon another mortgage of the defendants to the complainant, which was then given up and canceled.

The agent explains how the mistake was made, and the evidence for the defendants does not throw any serious doubt over the fact. He has and produces the receipts for all the other payments, but fails to produce any for a payment alleged by him to have been made to a brother of the agent, and which is denied by that brother in his testimony.

■ The complainant is entitled to the relief prayed for in his bill.