New York Life Insurance & Trust Co. v. Covert — 6 Abb. Pr. 154

Majority

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NEW YORK LIFE INSURANCE & TRUST COMPANY against COVERT.

Court of Appeals ;

June Term, 1867.

Headnote

Presumption of Payment.—Foreclosure.— Pleading.

The presumption of payment, declared by the statute to arise after the

. lapse of twenty years from the time a right of action accrues on a sealed instrument for payment of money, is not available to the owner of the equity of redemption of land, to defeat a foreclosure, if the mortgagor has made payments upon the bond and mortgage within twenty years of the commencement of the foreclosure.

A mortgage having been duly recorded, the grantor of the equity of redemption takes his title subject to the lien of the mortgage, and the mortgagor still has the power to prevent the exoneration of the land through the presumption of payment arising from lapse of time, by making partial payment or written acknowledgment. Hence, a- purchaser finding a mortgage upon the"land, cannot rely upon the presumption arising from the lapse of twenty years, but must ascertain, at his peril, whether anything has been done to repel the presumption arising from that fact.

An answer alleging payment of the debt is the proper- mode of presenting as a defense the presumption created by statute arising from the lapse of twenty years. Per Grover, J.

Appeal from a judgment.

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Tlie facts are stated in the opinions of the court.

William Betts, for the plaintiffs, appellants.

I. The plaintiffs are entitled to judgment of foreclosure and ' sale, unless the defendants establish their defense, that the bond and mortgage were paid by Cornell, the obligor, to the plaintiffs. Actual payment was alleged in the answer, and it was only on failure to prove this as a fact that the statute was interposed to prove constructive payment.

II. Such payment is not established. The bond and mortgage were assigned to the plaintiffs August 1, 1832, written notice thereof given to Cornell, and a written admission given by him on the same day. He made several payments on the bond and mortgage before assignment to the plaintiffs, and two afterwards. No other payments were made to them. Any payments made by them to any other person than the plaintiffs, after the assignment, cannot be allowed.

III. The court below rest their decision upon the ground that the two latter payments were made by Cornell after he had parted with the equity of redemption; that the payment, made before that time, being more than 20 years anterior to the commencement of the action, the bond and mortgage were paid by operation of law by virtue of the statute of limitations; and that the payment by Cornell did not bind Covert and Sniffen, the owners of the equity of redemption claiming under him, and therefore did not take the case out of the statute. The rule adopted by the court: “ That an acknowledgment and promise to pay a debt, or a-payment made by one of the several partners after dissolution, or one of several joint and several debtors, will not not revive or renew the debt against the others in reference to the statute of limitations,” cannot justly be applied to indebtedness by bond and mortgage. (1.) A debt by bond and mortgage is, in no sense, a joint and several debt as between the original mortgagor and subsequent grantees ; or as between them and the mortgagee and his assigns

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The mortgagee or his assignees invest their money upon the security of the land. They know nothing in the transaction but the original obligor and the bonded security ; and payments made by such obligor should bind the land, and all holding the land under him (Hughes v. Edwards, 9 Wheat., 490 ; Heyer v. Pruyn, 7 Paige, 465, 469). (2.) At the time of the commencement of this action, the statute had not begun to run against Cornell, the obligor, and the mortgage was held as collateral security. Covert and Sniffen, when they became the grantees of the mortgagor, took the title subject to the mortgage, as security for his bond. This security vested in the plaintiffs, to be released only when the bond should be paid ; and while the bond remained unpaid and enforcible, the security remained the same, the incident following the law of its principal. (3.) The defendants have no interest in this action, or the estate, except as claimants of the surplus. Their interest in the estate was incomplete, and subject to a prior estate in the mortgage, which is still valid ; the condition of the defeasance being still due. First. The act of Cornell, in parting with the land could not affect the mortgagee. Second. The recording of the deed was not notice to them, but only to subsequent parties. Third. Mortgagees are not put upon diligence to keep the run of transfers of land ; and the rights of a pledgee cannot possibly be affected by the act of a pledgor, without knowledge, privity or consent. (4.) It is not sought to bind Covert and Sniffen, the owners of the equity of redemption, personally, by the payment of Cornell, the obligor and mortgagor. His payments may bind the land without affecting his grantees. (5.) The application of the doctrine, enforced in the court below, and found in the cases of Van Keuren v. Parmalee (2 N. Y. [2 Comst.], 524); Shoemaker v. Benedict (11 N. Y. [1 Kern.], 176); and Winchell v. Hicks ( 18 N. Y., 558 ), to mortgage securities would be new and alarming, imperiling the security of all bonds and mortgages 20 years old, or nearly so; or by compelling a prompt payment or renewal, which

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might be disastrous, or, as in the case of minors, impossible. (6.) Established rules of law affecting real estate should never be changed except with great caution and for controlling reasons. (7.) The obligor is the proper person to pay the interest, although equally binding payments may be made by owners for the time being. (8.) The application of the new rule to mortgages would not only lead to the calling in or renewing of mortgages 20 years old, but it would effectually prevent their assignment hereafter. (9.) The affirmance of the judgment at general term would create a conflict between the law of the United States, and the State law, on this point, within this State. ,

IY. The revised statutes declare a presumption of payment, in 20 years, of a sealed instrument for the payment of money ; but this presumption may be repelled by proof of payment of some part (2 Rev. Stat., 301, § 48). (1.) The sealed instrument, for the payment of money in this case, is the bond ; the mortgage being merely collateral. The latter follows the bond. When the bond is paid the mortgage is dead ; as long as the bond remains unpaid the mortgage lives. (2.) The contract is between the obligor and obligee, and them alone. It stands, until, as between them, it is satisfied and discharged. (3.) The mortgage is a conveyance at common law. It vested the land in the mortgagee, and was defeasible only on condition of payment of the bond. The right of the owner was only an equity of redemption, and that rested on performance, that is, payment of the bond. (4.) The transaction amounts to this: The mortgagee now seeks to foreclose this equity of redemption, by asking for a sale of the property pledged ; and a stranger steps in, who had notice of the pledge, and sets up that he has paid nothing within twenty years. But the question is whether the debtor, the obligor, has paid within that time.

Y. If the view taken by the court below be correct, it is submitted that the benefit to be derived from the constructive- payment through the statute of limitations, can

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only be enjoyed when it is specially claimed in the answer. (1.) The answer does not plead the statute. Payment in fact by De Mott is averred. The cases cited by the court were decided before the amendment to the Code, in 1851. (2.) Since that amendment, the statute of limitations must be specially set up in the answer (Stewart v. Smith, 10 How. Pr., 75 , 77, 78). (3.) The Code is imperative that such a defense can be taken only by answer (Code, §§ 73, 74).

YI. The decision of the general term should be reversed.

E. G. Lapham, for the defendants, respondents.

I. The defendants, who now own the equity of redemption, claim that except as against Cornell the mortgagor, who has made payments on the bond, the presumption of payment is absolute,—that the mortgage cannot be collected out of the land. The only remedy remaining is an action on the bond, which Cornell has kept in life by his payments in 1841. (1.) The revised statutes (2 Rev. Stat., 301, § 48) fix the time at twenty years, and also provide the only mode of proof allowable in order to rebut the presumption of payment upon sealed instruments for the payment of money. (2.) In this case, there being no pretense of any written acknowledgment, the only question is whether Cornell'’ s payments can in any way affect the owners of the equity of redemption (14 N. Y. [4 Kern.], 302).

II. Cornell, having sold the equity of redemption, could do nothing whatever to affect the rights of the parties owning it. (1.) The foreclosure of a mortgage against the mortgagor alone, after alienation by him, is a nullity (Belmont v. O’Brien, 12 N. Y. [2 Kern.], 394; Watson v. Spence, 20 Wend., 263 ). (2.) The payment by one joint debtor does not take the case out of the statute of limitations (Van Keuren v. Parmalee, 2 N. Y. [2 Comst.], 523; Shoemaker v. Benedict, 11 N. Y. [1 Kern.], 176 ; Winchell v. Hicks, 18 N. Y, 558 ; Pars. Merc. Law, 241). (3.) The defendants have never done

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anything required by the statute to keep the mortgage alive as against them. (4.) Cornell’s payments were not made with the knowledge, privity or consent of the parties owning the equity of redemption. The effect, therefore, was only to keep alive the bond debt (Belmont v. O’Brien, 12 N. Y. [2 Kern.], 394; Morey v. Farmer’s Loan & Trust Co., 18 Barb., 401 ; S. C., 14 N. Y. [4 Kern.], 302).

III. The cases before the statute did not hold presumption of payment as strongly as the statute now does, and allowed a looser method of proof to rebut the presumption (Jackson v. Pierce, 10 Johns., 414 ; Bailey v. Jackson, 16 Id., 210 ; Arden v. Arden, l Johns. Ch., 313; Jackson v. Hotchkiss, 6 Cow., 401 ; Waddell v. Elmendorf, 12 Barb., 585 ; S. C. affirmed, 10 N. Y. [6 Seld.], 170). Since the statute the rule has been inflexibly adhered to, that mere circumstances alone will not be allowed to rebut the presumption. There must be a payment or a written acknowledgment (Van Rensselaer v. Livingston, 12 Wend., 490 ; Austin v. Tompkins, 3 Sandf., 22 ; Waddell v. Elmendorf, supra; Morey v. Farmer’s Loan & Trust Co., supra.

IY. So far as the main questions of this case are concerned, to wit: whether Cornell’s payments can operate to rebut the presumption arising in favor of the owners of the equity of redemption, the cases before the statute are equally authoritative with those since decided (Citing Jackson v. Ward, 12 Johns., 242 ; Giles v. Bareman, 5 Johns. Ch., 545 ; Park v. Peck, 1 Paige, 478; Heyer v. Pruyn, 7 Id., 465). (1.) Cornell’s payment in 1841, could have no greater effect than a recovery against him on his bond. (2.) In the case of Hughes v. Edwards, ( 9 Wheat., 490 ), it was held that the purchaser of the equity of redemption, with notice under "the registry act, was bound by the written acknowledgment of the mortgagor; but the case does not show distinctly whether the conveyance of the equity of redemption was before or after the acknowledgment. The inference, however, is that the acknowledgment preceded the con

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veyance, being in the form of letters which admitted the existence of the mortgage and promised to make remittances. (3.) In Dunham v. Minard (4 Paige, 443), the chancellor speaks of the owner of the equity of redemption as holding adversely to the mortgage when he has done nothing to recognize it. The reasoning of the court proceeds upon the assumption that the acknowledgment must be made while the party making it owns the whole or a part of the equity of redemption. It must be made by a person bound to remove the burden of the mortgage, and whilst so bound.

V. It has never been necessary in this State to plead this statute specially, for the reason that it is treated as a rule of evidence. The answer that the mortgage had been paid was enough, and the statute comes in as evidence under that plea (Giles v. Bateman, 5 Johns. Ch., 545 ; Austin v. Tompkins, 3 Sandf., 24 , and cases cited). (1.) The statute of presumption of payment arising from lapse of time is not a part of the - statute of limitations; but were it otherwise, it is not repealed or altered by the Code (§ 73). See 2 Rev. Stat., 4 ed., 546 ; 3 Id., 5 ed., 590, § 3. (2.) The Code does not apply to cases where the right of action accrued before its passage, but expressly saves the Revised Statutes as to such cases (Code, § 73). (3.) It is only in cases under the Code that the defense must be pleaded. The defense of payment is the only one under which presumptive evidence of such payment, furnished by the statute, can be given ( 3 Den., 314 ). (4.) Ho objection to the answer was taken before the referee, and it cannot be raised upon appeal. The court may now conform the pleadings to the facts proved {Code, § 173; 11 N. Y. [1 Kern.], 237; 14 Id. [4 Kern.], 85 ; 18 Id., 515 ; 20 Id., 355 ).

VI. The cases in 9 Wheat., 490 , and 7 Paige, 465, already cited, are distinguishable from this.

VII. The case shows that after the conveyance by Cornell of the mortgaged premises, he treated the debt as his, and made payments which are admitted and proved to be payments in full. There is no evidence that either

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of the owners of the land, after Cornell conveyed to Clay, was ever called upon for payment, or in any manner recognized the debt as one for him to pay; nor is there any evidence that Cornell, between May, 1830, and the- conveyance to Clay in 1837, in any manner recognized the debt as existing, except, perhaps, by his admission of notice of the assignment to the plaintiff. So that twenty-three years had elapsed after the last act, by an owner of the equity of redemption, in recognition of the debt, before this action was commenced. It is submitted that this action, to which Cornell is not a party, should not be upheld. To maintain it would render titles insecure. The statute relating to presumption of payment, and the kindred act barring an entry upon land unless an action shall be commenced within twenty years after the right of entry accrued, would cease to afford protection to purchasers.

The complaint in this action was filed in August, 1853, and the suit was instituted to foreclose a mortgage dated May 1, 1829, to secure the sum of $1,400, in two annual payments. The bond and mortgage were executed by William Cornell to Daniel A. Ammerman, and by several mesne assignments were vested in the plaintiffs. The last payment made by Cornell on the bond, while owner of the premises, was on May 26, 1830. Cornell continued in possession of the premises until 1838.

In 1837 he conveyed the said premises to one Bradley Clay, and continued in possession as Clay’s tenant until 1838.

In 1838 Clay and wife conveyed the premises to one Cornelius Y. Covert, who entered and occupied the premises for a time, and then conveyed a portion of them to the defendant Snifiin, and another portion to the defendant Isaac Covert. On November 5, 1841, Cornell, the obligor of the bond, paid on account of the debt secured thereby, the sum of $100, and on December 9 in that year paid a further sum of $200. Judgment at

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special term was given for a foreclosure and sale of the mortgaged premises, which was reversed at general term, and a new trial ordered.

Defendants set up in their answer that said bond and mortgage had been paid, and that there was nothing due thereon. They attempted to show actual payment by Cornell of the whole amount due ; but it appeared that in 1842 he paid to one De Mott a sum sufficient to liquidate the balance due on said bond and mortgage, but that De Mott had never paid the sum over to the plaintiffs.

The defendants then relied upon the presumption of payment created by the statute.

The Revised Statutes provide that “after the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment.; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period” (2 Rev. Stat., 301, § 48).

The mortgage set out in the proofs in this action is not a sealed instrument for the payment of money {Code, §§ 162, 246).

It contains no covenant for the payment of money, and does not, therefore, fall within the class of instruments enumerated in the statute. The right of action upon such an instrument, it not being for the payment of money, cannot be affected by this clause of the statute.

It is well settled in this State that a mortgage is a mere security—a pledge of land covered by it for the money borrowed or owing and referred to in it (Kortright v. Cady, 21 N. Y., 343 .

But the mortgage ceases to have any force or effect, upon the extinguishment of the debt for which it is given as security.

If the debt secured was paid, then the lien of the mortgage was at an end. It becomes, therefore, the

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turning point in this case, to ascertain if that debt is paid.

The statute, we have seen, already quoted, declares that after twenty years from the time a right of action shall accrue upon a sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment.

Now this bond was a sealed instrument for the payment of money. The right of action accrued upon it on April 1, 1831, when the last installment became due. This action not having been commenced until August, 1853, the presumption arose that it had been extinguished by payment.

This is now the claim of the defendants — not actual payment, but the presumption of payment created by this lapse of time, and the provision of the statute. In Morey v. Farmers’ Loan & Trust Co. (14 N. Y. [4 Kern. ], 302), Weight, J., refers to this statute, and the change it effected. He says, “Prior to the enactment of this provision, at common law a presumption of payment of a bond, mortgage, or other contract for the payment of money, was allowed to prevail, to' the defeat of actions on those instruments, after the lapse of twenty years, or, in some cases, a less time.

‘ ‘ Such presumption, however, might have been rebutted by any evidence, parol or written, tending to show that payment had not been made. The revisers of the statute, whilst they proposed to fix the term that should elapse before the presumption attached, did not propose to disturb the rules of evidence by which the presumption of payment might be repelled, and accordingly, as they reported the section to the legislature, it read, ‘ but such presumption may be repelled by competent proof of an acknowledgment of such right of action within that period,’—thus leaving it to the courts to say what circumstances should be .sufficient to repel the presumption.

“The legislature struck out the words ‘competent proof,’ and in place thereof inserted ‘ by proof of pay

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ment of some part, or "by proof of a written acknowledgment of such right of action within that period,” — clearly evincing an intention to restrict the repelling evidence to proof of payment of part, or an acknowledgment in writing of the right of action within the twenty years (Revisers’ Notes to § 48, supra). The intention of the statute was to exclude every description of rebutting evidence except that expressly mentioned in it. The maxim, ‘ expressio unius exclusio est dlterius,’ is as applicable to the construction of statutes as to contracts.”

We have thus laid down a clear and unmistakable rule to apply to the construction of this statute. As the mortgage stands as a simple security for the debt mentioned in the bond, it follows that whenever that debt is paid, or no action can be maintained to enforce its payment, the lien created by the mortgage ceases, and it, of course, cannot be enforced. The bond given is an instrument for the payment of money, and, if an action cannot be maintained upon it, such right shall be presumed to have been extinguished by payment.

Thereupon the defendants have set up in the answer payment of the debt which the mortgage was given to secure, and have been allowed to prove:

1. Actual payment; and, failing in that, 2. Constructive payment by lapse of time, which the statute declares shall be deemed presumptive payment. The plaintiffs rebut or repel this presumption by showing payments in part of that debt by the obligor of the bond given therefor, and the person primarily bound to pay the same, within twelve years before this action was commenced. It clearly follows, therefore, that at the time these plaintiffs sought to enforce then* lien upon the land pledged for the payment of this debt, that debt remained in full force and vigor, and the presumption of payment arising from lapse of time was repelled and overcome.

These defendants have no equities superior to the right of these plaintiffs to resort to the pledge given to secure their debt. It still remains a debt due and owing to them, and their right of action upon the sealed instru

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ment given for its payment remained in its pristine force and vigor at the time of the commencement of this action. These defendants purchased the premises pledged for the payment of that debt with full knowledge of its existence, and we are authorized to assume that either the amount due at the time of their purchase was deducted from their purchase money, or, in lieu thereof, they elected to rely upon the personal covenant of their grantors to save them harmless therefrom.

I cannot concur in the view that the lien is extinguished for the payment of this debt, without some act or omission of the holder thereof, so long as the debt, for which it stands as security, remains legal, valid, subsisting and unpaid.

In Hughes v. Edwards ( 9 Wheat., 489 ), a 1 ill was filed to foreclose a mortgage given in 1793, and recorded in 1794. The bill was filed in June, 1816. Subsequent to the execution of the mortgage, the mortgagor sold part of the mortgaged premises to several parties, who were made defendants, and it was claimed that the plaintiffs were barred of their right to foreclose by length of time. It appeared that -the mortgagor had written two letters to one of the plaintiffs, in 1803 and 1808, admitting that the mortgage was then subsisting, that the debt was unpaid, and they contained promises . to pay it when it should be in the power of the writer. In addition to this, credits were indorsed on the bond for payments made January 15, 1798, May 15, 1803, and August 2, 1808. The court said : “The mortgagor, then, cannot rely upon length of time to warrant a presumption that this debt has been paid or released, the circumstances above detailed having occurred from eight to thirteen years only prior to the institution of this suit.”

It is apparent from the case that the acknowledgments and payments were made by the mortgagor, after the conveyance by him of portions of the mortgaged premises to other defendants. Washington, J., in the opinion of the court, says:

“ But it is insisted that, although these acknowledg-

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ments may "be sufficient to deprive the mortgagor of a right to set up the presumption of payment or release, they cannot affect the other defendants, who purchased from him parts of the mortgaged premises, for a valuable consideration.

“ The conclusive answer to this argument is, that they were purchasers, with notice of this incumbrance. It must be admitted, that it was but constructive notice; but for every purpose essential to the protection of the mortgagee, against the effect of those alienations, it is equivalent to a direct notice, and such is unquestionably the design of the registration laws of Kentucky.

“ A purchaser, with notice, can be in no better situation than the person from whom he derives his title, and is bound by the same equity which would affect his rights. The mortgagor, after forfeiture, has no title at law, and none in equity, but to redeem upon the terms of paying the debt and interest. His conveyance to a purchaser with notice, passes nothing but an equity of redemption, and the latter can, no more than the mortgagor, assert that equity against the mortgagee, without paying the debt, or showing that it has been paid or released, or that there are circumstances in the case sufficient to warrant the presumption of those facts, or one of them.

“ The court is, therefore, of the opinion that this objection cannot be sustained by either of the appellants.”

The doctrine of this case has received the unqualified approval of Chancellor Walworth, in Heyer v. Pruyn (7 Paige, 465). In this case the mortgage was given in July, 1809. In 1812 the mortgaged premises were sold, under judgment against the mortgagor, and purchased by one Van Dyke.

At the time the arrangement was made whereby Van Dyke was to become the purchaser, a statement of all the judgments and other incumbrances on the property was made out, and Heyer’s mortgage was included therein, for the whole amount of principal and interest from its date, as a valid and subsisting incumbrance on the premises.

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Van Dyke subsequently conveyed the premises to one Shaver, through whom the defendants took title.

The chancellor held that the fact of the purchase by Van Dyke, with full notice of the bond and mortgage, and of the amount claimed to be due thereon, was a distinct recognition by him of the existence of that bond and mortgage as a valid lien upon the premises in September, 1812; and that if he had continued the owner of the mortgaged premises until the commencement of that suit in January, 1832, it was evident that he could not have set up lapse of time as a bar to the complaiant’s suit, even if there had been no subsequent payment on the bond and mortgage, nor any recognition of the same as a subsisting debt. The chancellor says: “The defendants, therefore, claiming through the conveyance from Van Dyke to Shaver, sit in the seat of the grantor in that conveyance, and are bound by his previous recognition of the mortgage as a subsisting incumbrance upon the premises, within twenty years.

In the case of Hughes y. Edwards {supra), the supreme court of the United States held that purchasers from the mortgagor, who had either actual notice of the mortgage at the time of their purchases, or had constructive notice by means of the registry, were bound by a previous acknowledgment of the person under whom they claimed of the existence of the indebtedness within twenty years.”

These views would seem to be decisive of the plaintiffs’ right to maintain this action, and to have the land sold which had been pledged for the payment of their debt, and which debt, at the time of the commencement of this action, was valid, subsisting, and legal.

This action was commenced in 1853, to foreclose a mortgage given in 1829, by William Cornell, upon certain lands in Seneca county, in which the mortgage was recorded shortly after its date. The mortgage was given to secure the payment of fourteen hundred dollars, in two annual payments from date, according

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to the condition of a bond of the mortgagor therewith given.

The bond and mortgage, by various assignments, were transferred to the plaintiff, long before the commencement of the action.

In 1837, Cornell conveyed the land to one Clay, in fee, and by various "conveyance, the title became vested in the defendants before the commencement of the action.

Cornell, while he owned the land, made various payments upon the bond and mortgage, but none within "twenty years of the commencement of the suit. After the conveyance of the land by Cornell, and while he had no interest therein, and within twenty years of the bringing of the action, he, without the knowledge of the then owners, made payment to the plaintiff upon the bond and mortgage. The action was referred to a referee to report the facts, who heard the proofs of the parties, and made his report to the supreme court, at a special term, at which judgment was given for the plaintiffs for the sale of the mortgaged premises, and for payment of the amount found due, together with costs. The defendants appealed from this judgment to the general term, by which the judgment was reversed, and a new trial ordered. Prom this order the plaintiffs appealed to this court.

The statute (2 Rev. Stat., 301, § 48) provides that after the expiration of twenty years from the time that a right of action shall accrue upon a sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period. In the present case, Cornell, by making payments upon the bond and mortgage within twenty years of the commencement of the suit, has repelled the presumption of payment, so far as he is concerned, and as against him the debt was valid and subsisting—against which he had no defense.

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The defendants insist that although the debt was in full force against Cornell, yet the presumption of payment applies to them, inasmuch as they and the other owners of the equity of redemption have made no payment upon the mortgage within twenty years from the time it became due before the commencement of tire suit.

The counsel, in support of this position, cites Van Keuren v. Parmelee (2 N. Y. [2 Comst.] 523), and other" cases, holding that payment by one joint debtor upon a demand does not prevent his co-debtor from availing himself of the statute of limitations as a defense. This is based upon the want of authority of one joint debtor to do any act affecting the rights of the other debtor. In the present case it cannot be claimed that the mortgage debtor had any authority from his grantor, or the other owners of the equity of redemption, to act as their agent in any respect, or to do any act affecting their rights. He could not by any act of his create or continue any debt or liability against them without their assent.

He could not, after the conveyance by him, do any act affecting the title of his grantors. In these positions I fully concur with the reasoning of the learned counsel. But I think the present case does not come within any of the above propositions. Cornell, while owner of the premises, mortgaged the same as security for his debt.

His grantor took the title subject to this pledge. The record of the mortgage was notice to all of the existence of the mor: gage.

The land, having been pledged as security for the debt of Cornell, would so continue until that debt was in some manner discharged, unless the land was released from the lien by some act of the holder of the mortgage.

Cornell had the power to prevent the discharge of the debt by the presumption of payment from lapse of time, by making partial payment or by written acknowledgment. This he has done; consequently the debt is in full force against him. The pledge was made by him to secure this debt of his own, not to secure any debt of the defendants, or of any owner of the equity of redemp

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tion. Subject to this lien for Cornell’s debt, his grantor and the other owners of the equity of redemption took the ■ title, and also subject to the power of Cornell to repel the presumption of payment in the mode specified in the statute. The defense claimed was that of the payment of the debt of Cornell. The evidence relied upon for its support was the presumption from lapse of time. This presumption was repelled by proof of payment by Cornel], the debtor.

The defense of payment of the debt, therefore, failed. This was not continuing or reviving a debt against the defendants. There was no debt against them at all upon the mortgage or bond. No personal liability against them was claimed. It was not an act affecting their title. That title was always subject to the lien of this debt of Cornell’s, and all that Cornell did was to furnish the proof that the debt had not been paid. No presumption of payment by the defendants could attach by virtue of the statute, for the reason that they owed no debt, nor were subject to any liability that could be satisfied. They owned the land, subject to the pledge for the payment of the debt of another, and when they sought to discharge it therefrom, the onus was upon them to show payment of the debt; and any evidence that was competent and sufficient to prove the debt not paid was an answer to the defense, and proved the continuance of the lien.

In Heyer v. Pruyn (7 Paige, 465), it was held that a recognition of a mortgage as an existing lien by one about to acquire title, and who did thereafter acquire it, continued the lien for twenty years after such recognition, as against him and his subsequent grantors. In Hughes v. Edwards ( 9 Wheat., 490 ), the supreme court of the United States held that a subsequent purchaser, having constructive notice of a mortgage, by reason of its registry, was bound by an acknowledgment of a former owner within ttventy years, although he had no notice of such acknowledgment.

These cases, while not involving the precise question

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in the present case, show that a purchaser, finding a mortgage upon the land, cannot rely upon the presumption arising from the lapse of twenty years, but must ascertain, at his peril, whether anything has been done to repel the presumption arising from that fact. The registry of a deed given by a mortgagor subsequent to.the mortgage is no notice of such conveyance to the mortgagee. The latter is under no obligation to search for such conveyance. A rule holding the lien of a mortgage dischargéd after the lapse of twenty years from its becoming due, notwithstanding the mortgagor had punctually, from year to year, paid the annual interest, because of a conveyance of the mortgaged premises by the mortgagor, unknown to the mortgagee, would be harsh and unjust.

To hold that the lien continues until the debt for which the mortgage was given was discharged by the debtor, is no hardship to the purchaser of the equity of redemption. He knows of the lien when he purchases, and may at any time thereafter make payment; or otherwise, if practicable, procure its discharge. To hold a debt presumptively paid, and therefore adjudge it paid as to third persons, while it is found not paid, but in full force against the debtor, would be anomalous.

This statute is not analgous to that of limitations. This, upon which the present defense is predicated, merely establishes a rule of evidence as to payment upon sealed instruments. And the answer alleging payment of the debt was the proper mode of presenting the defense, whether proof of payment in fact, or the presumption created by statute, was relied upon to sustain, such allegation.

The order of the general term, reversing the judgment of the special term, and directing a new trial, should be reversed, and the judgment of the special term affirmed.

Judgment accordingly.