Majority
p. 242Jackson, ex dem. The People, v. Wood.
Headnote
Where the n’e'rePlntered o"t0theSSmOTt" fe^llid noedeSe,horbe¿“ twenty1^years' the mortgage •will be presnmed to have been satisfied.Aod where, neverm°havmg ed)itisTttemptResumption4 of the7maecknowledgments of subsequent purchasers of the denee of notice existeimed'the be “ciefr 'and explicit.
THIS was an action of ejectment, brought to recover lot No. 12, in Bairds patent, in the town of Cambridge, and tried before the chief justice, at the Washington circuit, 1814.
The premises in question were mortgaged by Daniel Ellis to John Munro, by mortgage, bearing date the 18th April, 1775, with covenant for the payment of 60k current money of JVewYork, with interest annually, commencing on the 18th April, ’ , , ° , 1 ¡ 775. it did not appear that the mortgage had ever been acknowledged or registered. Munro was attainted for adhering to the enemies' of the state, and judgment of attainder was signed on the 14th July, 1788. The mortgage, and an exemplification °f the judgment' were produced and proved, on the part of the Pontiff.
A witness, on the part of the plaintiff, testified, that he had . . 1 . x known the premises m question, for 30 years past; that Darnel Ellis was succeeded, in the possession of the lot, by one Dobbs, who was succeeded by a Dr. Hill; then one Brown, succeeded, who purchased HilPs right to the premises, at vendue; that Brown sold to Isaac Pcrine; Pcrine to Abraham Lake ; Lake to Willard Trull; Trull to David Pierce, whose right was acquired
p. 243
by Paul Cornell, at public vendue, arid that Cornell sold to the defendant. .
Witnesses were produced on the part of the plaintiff, to rebut the presumption of payment, arising from the lapse of time.
Willard Trull testified that he purchased the premises in question, of Abraham Lake,in April, 1776; that at the time of his purchase he well understood there was a mortgage on the premises for sixty pounds, given by Daniel Ellis to John Munro; that when he sold the premises to David Pierce, he informed him of the existence of the mortgage, and told him- if there should be any difficulty on account of it, he would give him Lake's deed,
on Which he might seek his remedy; that he had frequently spoken with Cornell, who, with one Merrit, acquired Pierce's right respecting the said mortgage; that he was present when Cornell sold to the defendant, and that he believes the mortgage was then spoken of, and it was then understood, if there should be any difficulty oil account of the mortgage, resort could be had to Lake's deed.
Asa Rice testified that he had known the premises 26 or 27 years ago, when one Hill was in possession, and that Hill sold to Brown ; that he had known all the persons, since in possession of the premises, and had heard them all acknowledge the existence of the mortgage given by Ellis to Munro, and that it was unpaid. On being cross-examined, as to which of the owners of the land he had heard acknowledge the existence of the mortgage, he said every one but Brown; and on being cross-examined as to the amount of the mortgage, he said, that the occupants, told him, that only forty acres were mortgaged, and that the slim was forty pounds.
The defendant then gave in evidence a deed of the premises in question, from Brown to Perine, dated the 5th February, 1792 ; a deed from Perine to Lake, date.d the .21st March, 1793; a deed from Lake to 'Trull, dated 15th April, 1796; a deed from Trull to Pierce, dated 24th June, 1806.; a. deed from the sheriff of Washington county conveying the title of Fierce to' Cornell, dated the 4th August, 1810; a deed from Cornell to the defendant, dated the 1st April, 1811. All which deeds were for the premises in question, and,, (excepting the sheriff’s) contained covenants of warranty, but no mention was made of the mortgage in either of them.
The chief justice charged the jury, that by the attainder, and
p. 244There .can be no doubt, from the evidence, of the existence of the mortgage; and the question is,' whether- the plaintiff can recover under this mortgage, it not having been registered. The statute was made, to protect bona fide purchasers; ' and- the defendant must show himself to-be a purchaser for a valuable consideration, and without notice ; but, from thebvidence, it appears that the defendant, and those under whom, he claimed, had notice of the existence of this mortgage, The defence relied on in this case is a possession, for more than 20 years, under a claim of title. The lessors of the plaintiff claim under a mortgage, dated 39 years before the trial, The right of entry accrued to the mortgagee long before his attainder.- In presumption of law, the mortgagor still continued in possession. As nothing1 was done by the mortgagee, it must, after so great a lapse of time, be presumed, that the mortgage had been satisfied, and settled, before this attainder; and its having remained so long unregistered, fortifies that presumption, _ ' Again, a mortgage is no evidence óf title, if the mortgagee has never entered, and no interest has been paid for 20 years.[1]
conviction of Munro, the people had. become vested with Ms rights, and consequently might bring an action on the mortgage given to him 5 but'that the plaintiff was not. entitled to recover# inasmuch as the mortgage had not been recorded, and sufficient notice of its existence had not been brought home to the defendant, or those under whom he claimed, and that the jury had a. right to apply the presumption of law, that the mortgage had been paid, to this case, it being of more than 20 years'standing, and no sufficient circumstances existing on the part of the plaintiff to repel the presumption. Under which charge the jury found a verdict for the defendant.
• A motion was made to set aside the verdict, and for a new trial,
Van Vechten and Wendell for the plaintiff.
Crary, contra.
The lessors of the plaintiff claim title to the premises in question, under a mortgage, bearing date the 18th of April, 1775, given by Daniel Ellis to John Munro, for &Ol. The attainder and conviction of Munro, and the execution of
p. 245
the mortgage, were duly proved; and' the only question upon the trial was, whether the evidence offered was sufficient-to re-hut the presumption of payment, arising from the lapse of time. There xvas no witness who spoke of any acknoxvledgment of ,the several oxvners of the land, that there was any mortgage upon it, xvhich was in force and unpaid, except Asa Rice; and he does not identify the mortgage now in question. The one he heard spoken of xvas for 40/. ; and upon forty, instead of one hundred, acres of land. And he, too, contradicted himself, first saying he had heard all the oxvners aeknoxvledge the mortgage, and afterwards admitting that he had never heard Brown make any such acknoxvledgment. And, besides, his knowledge of the lot seemed to be imperfect, and recent, xvhen compared with the date of the mortgage. Under such circumstances, the jury might well question the accuracy of his memory. The acknowledgments spoken of by all, the other xvitnesses . were in reference to mere vague rumours, and by no means recognizing this as a valid subsisting mortgage, for which the owners of the land held themselves responsible. And their conduct shoxvs, that they did not consider it in this light. For, in the numerous sales made of the premises, no deduction in the purchase money appears to have been made on this account; and warranty deeds xvere given, xvithout any exception of the mortgage. No bond xvas shown; and the mortgage not having been registered, no discharge upon it was absolutely ne- ■ cessary to invalidate it. Payment of the bond xvould operate as. a discharge of the mortgage. The presumption of the payment, and extinguishment of such an old outstanding mortgage, ought to be pretty liberally indulged. Where the mortgagee has never entered into possession of the mortgaged premises, txventy years xvithout any demand, or any interest having been paid, has alxvays been deemed a sufficient length of timé to xvarrant the" presumption of satisfaction. ( 3 Johns. Rep. 386 . 7 Johns. Rep. 283 . Bull. N. P. 110.) The mortgage not having been registered, cannot be set off against subsequent bona fide purchasers, unless notice of the mortgage is brought home to them. What is said by the court in Jackson v. Given, ( 8 Johns. Rep. 140 .) is very much in point, that mere loose conversations will not warrant the inference of notice. And Lord Hardwicke, in Hine v. Dodd, (2 Atk. 275.) said, that mere suspicion of notice was not" enough to break in upon the registry
p. 246
act; nothing short of fraud or dear and undoubted notice would do. The samé doctrine has been recognised in other cases. Under these circumstances, the jury were fully warranted in presuming, either an extinguishment of this mortgage, or a want of due notice of its existence. The motion for a new trial must accordingly be denied.
Motion denied..