Chares BAILEY and Fannie B. Bailey, his wife,
Riley E. BLODGETT, and Riley E. Bodgett, Executor of the Estate of Louisa Blodgett, deceased.
Petition for satisfaction of mortgage on ground of presumption of payment from lapse of time, wherein defendant moved to dismiss the petition for failure to state claim upon which relief could be granted. The Superior Court for New Castle County, Carey, J., held that the presumption could be the basis of the affirmative relief sought.
[49 Del. 487] Petition for satisfaction of a mortgage. Motion by defendant to dismiss for failure to state a claim upon which relief can be granted.
Howard M. Berg, Wilmington, for petitioner.
George L. Sands, of Morford & Bennethum, Wilmington, for defendant Riley E. Blodgett, individually.
No appearance for the defendant executor.
The petitioners, on February 11, 1931, executed a mortgage in favor of Louisa Blodgett as security for the payment of $2772.77 covering certain lands in Blackbird Hundred. It was payable on or before February 11, 1932. It was duly recorded and remains unsatisfied on the record. The mortgagee died testate in 1940, leaving her residuary estate to the individual defendant and naming him as executor.
After reciting the foregoing facts, the petition states that no payments of principal or interest have been made on the debt secured by said mortgage for a period of at least twenty-two years, and that no demand for payment of either principal or interest has been made, nor any action brought to foreclose the mortgage during that same period. It avers that the mortgagee, executor and heir have refused or neglected to enter satisfaction upon the mortgage record. The petitioners do not allege that the debt was actually paid, but rely upon the presumption of payment arising from lapse of time. They seek an order of satisfaction under Title 25, Revised Code 1953, section 2115.
The individual defendant has moved to dismiss upon three grounds: (1) the Court has no jurisdiction under the cited statute because, by its specific terms, satisfaction can be ordered only when the mortgage debt has been paid, and not when it is merely presumed to have been paid; (2) presumption of payment arising from lapse of time may not be used to secure affirmative relief; (3) the language of this petition shows that the debt has not in fact been paid, thus destroying any presumption of payment which might otherwise exist.
In support of his third contention, defendant relies upon Cunningham v. Davidoff, 188 Md. 437, 53 A.2d 777. It was there pointed out that the presumption did not arise because the [49 Del. 488] amended bill expressly stated that no payments of principal or interest had ever been made on the mortgage debt. Obviously, such an admission negatives any such presumption, but this is not the effect of the present petition. It was filed on October 25, 1954 and denies any payments or demand for at least twenty-two years, that is, since October 25, 1932. However the mortgage was dated February 11, 1931 and was payable on or before February 11, 1932. Nothing in the petition, therefore, is inconsistent with a presumption of payment, for the debt may have been paid on or even before its final due date. The allegations are accordingly materially different from those in the Cunningham case.
Defendant's first contention, based upon the express language of the statute, attacks the Court's jurisdiction. In support of it, he relies upon In re Agostini, 3 Terry 347, 33 A.2d 306, 309. The Act provides in part as follows:
‘ (a) In all cases where mortgages or judgments are liens on real estate in this State and the same have been paid and the mortgagee or obligee or their executors, administrators or assigns refuses or neglects to enter satisfaction of such mortgage or judgment on the record thereof in the office where the same is recorded or entered, within 60 days after the payment thereof, the mortgagor or obligor or their heirs or assigns may, upon sworn petition to the Superior Court of the county in which such mortgage or judgment is recorded or entered, setting forth the facts, obtain from such court a rule on the mortgagee or obligee or their executors, administrators or assigns, returnable at such time as the Court may direct, requiring such mortgagee or obligee or their executors, administrators or assigns to appear on the day fixed by the Court and show cause, if any they ...