Jackson ex dem. People v. Pierce — 10 Johns. 414

Majority

p. 420

Jackson, ex dem. The People, against Pierce.

NEWYORK,

Oct. 1813.

Headnote

Where a person, who had a mortgage of lands, was afterwards at-tainted, it was held that the mortgage might be set up against the people, ashavmg succeeded to the rights of gor. Where a ™aTiSamedor«rant from March, 1802, it was held, that after deducting the period of the American war, the lapse of time was sufficient to afford the presumption of payment. But the period of 20 years is only a circumstance on which to found a presumption, and is not, of itself, a bar.

And where the attorney-general and surveyor-general, to whom the petition of the occupants of lands mortgaged by a person attainted, had been referred, by the senate, in March, 1802, reported the mortgage as^yt^tanding, and a balance due thereon, this was held sufficient to repel the presumption of paymeiitySeSpecially when connected with olher circumstances.

Where a mortgage is%?yen of an undivided part or share in a large tract of land; and on partition, the right or share of'-Hhc mortgagor is allotted in severalty, the mortgage will be considered as attached to the part so assigned as the share of the mortgagor, and will cover his whole interest therein.

THIS was an action of ejectment, tried at the Oneida circuit, in June, 1813, before Mr. Justice Yates. •

Letters patent under the colonial government, dated the 12th of June, 1771, were granted to William Bayard and fifty-four others, of whom William Kane and A. M‘Bougal were two, for 50,000 acres of land, known by the name of Freemasons’ pa{enf and formerly called the Oneida purchase. Kane and ve 1 M‘Dougal released in fee to Jphn Weatherhead all their undivided shares in the tract, on the 19th of October, 1771. The iract was divided by commissjdners of partition, appointed by an act of the legislature passeothe 10 th of April, 1787. By the

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partition, lots No. 5. and 98. fell to the share of Kane, and lots No. 28. and 64. to M(Dougal. Weatherkead was attainted, by the act of attainder of the 22d of October, 1779. The premises in question are a part of great lot No. 5.

The defendant proved that Weatherkead, on the 2d of March, 1773, executed a mortgage deed to Thomas Warnald and others, of Leeds, Great Britain, for two fifty-fifth parts of the said tract, that is to say, two fifths of the said two fifty-fifths, to secure the payment of a bond given by him to W. and F., dated the 5th of August, 1772, for 243Z. 2s. lOd. sterling, in one year, with interest at 5 per cent., and three fifths to T. and H. W., to secure a bond given them, on the 12th of August, 1772, for 367Z. 18s. 5d. sterling, payable in one year, with interest. The mortgage contained covenants of seisin, quiet enjoyment, Sec. and for payment of the money. On the bond to W. and F. there was an endorsement, dated the 29th of April, 1774, of the payment of 4QZ. on account of interest, and on the bond to T. and U. W. an endorsement of the same date, of a payment of 58Z. Is. Ad. on account of interest. On the 19th of March, 1803, the mortgage was assigned to John Thurman. On the 29th of March, 1802, the attorney-general and surveyor-general, to whom had been referred by the senate the petition of the occupants of the land, made a report, that there was due on the said mortgage 6,653 dollars and 24 cents, and that it was not advisable for the state to redeem the mortgage, but that it would be proper to sell the land subject to the mortgage.

Kane, on the 30th of April, 1795, demised lot No. 5. to one D. Rindge, for 21 years, at the annual rent of one shilling per acre; and on the 3d of February, 1800, being shown his release above mentioned, he assigned the indenture of demise to Thurman, to whom the tenant attorned by endorsement on the lease, and regularly paid the rent to him. The defendant claimed to hold by assignment under Rindge. Lot No. 98. had also been demised by Kane to A. Case, who assigned the lease to Thurman.

No part of the Freemasons’ Patent was settled or inhabited, until about the year 1786, and the premises in question remained a forest, and uncultivated, until about the time Kane made the lease to Rindge.

Van Vechten (Attorney-General) contended,

that from the.

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lapse of time, being more than 20 years, there being no payment within that time, or possession under it, the mortgage must be presumed satisfied.

This presumption is not repelled by the report of the altor-' ney-general and surveyor-general to the senate. They knew nothing more than that there was a mortgage on record. The proceeding and inquiry were at the instance of the persons in possession. That report, made under those circumstances, ought not to be allowed to affect the legal presumption as to the mortgage.

Gold, contra,

insisted, that the presumption of payment never existed, unless the mortgagor had remained in possession 20 years; and so if the mortgagee remains in possession 20 years, a release of the equity of redemption may be presumed.^[1]

Full 20 years are required to raise the presumption of payment as to a bond, unless the presumption is strongly aided by other circumstances.^[2]

There are special circumstances, in the present case, to repel the presumption. The premises were a wilderness, and no rents and profits could be received by a mortgagee, if he went into possession. The interest was paid down to the time of the commencement of the late war; and the mortgagee xvas attainted and xvent to England. The extreme difficulty of obtaining payment, the insolvency of a debtor, or a state approaching to insolvency, have been deemed circumstances sufficient to repel the presumption of payment.^[3] The bare endorsement of the bond by the obligee has also been considered sufficient for that purpose.^[4]

If the time is taken from the 29th April, 1774, when the payment for interest was made, and the period of the xvar is deducted, 20 years had not elapsed. From the end of the war to March, 1802, is barely 19 years; and from the end of the war to the time Kane made the lease 12 years only had elapsed. Until 1795, when Kane executed the lease, the premises were a forest; the tenant, on the 1st of February, attorned to Thurman, and paid rent to him. This ought to be taken against the state, in a case like the present, where an attempt is made to enforce a forfeiture after 18 years.

Van Vechten, in reply,

said, that it made no difference whether the premises were vacant or not. The fee-simple, in judgment of law, remains in the mortgagor; the mortgage is to be deemed as mere

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security for the debt. Courts do not, in all cases, require full 20 years to sustain the presumption of payment. It has been allowed where 18 years only had elapsed, and even for a less period.

The state has succeeded to the rights of Weatherhead, and if the defendant would have been entitled to set up the mortgage as against him, without the attainder, he is equally so entitled against the people. In April, 1774, interest was paid on the bonds, for which the mortgage was given as a security. In March, 1802, the attorney-general and the surveyor-genéral, on a reference from the senate, reported the mortgage debt to be outstanding and due. Here was an interval of 28 years, during which the mortgage debt lay dormant; and if we deduct the period of the American war, it will leave the 20 years from which to form a presumption of payment. But the 20 years is only a circumstance on which to found the presumption, and is not, in itself, a legal bar; and at the very time when the presumption was to arise, the officers of the government to whom a question of this kind would naturally be referred by the government, and to whom it was referred by the senate, reported the mortgage debt to be still in force. This was enough to rebut the presumption, and in the year following, or March, 1803, the mortgage was assigned to Thurman, under whom the defendant held. When we connect with the above facts the further circumstance that the premises were uncultivated lands, and a forest, until 1795, we are of opinion that the jury would have been warranted to consider the mortgage as a subsisting encumbrance, and a valid defence by the party in possession of it.

The mortgage was originally given for a small undivided part, being two fifty-fifths of a large tract of land; but on partition, the right of the mortgagor was allotted to that part of the tract which included the premises; and we are of opinion that the mortgage is to be considered as attached to that part so assigned as the share bf the mortgagor, and as covering his whole interest in it.

J udgment for the defendant.,