Van Rensselaer v. Wright

The application for leave to issue an execution, or a writ of possession, upon the judgment in this action was denied at the general term, upon the ground, according to the opinion, that a legal presumption of its satisfaction has attached. The action was for the recovery of the possession of land, for breach of the condition as to payment of "rent contained in a manorial lease in perpetuity, and more than twenty years ago the plaintiff was awarded judgment of possession. This judgment was never sought to be enforced by a writ of possession and the theory of the general term, in holding that' the present application by plaintiff’s assignee of the judgment is barred, is that the doctrine of limitations applies, and that from non-action by the plaintiff the presumption arises that the defendant has, at some time during these twenty years, paid the rent and costs and thus became entitled to keep the possession of the, land. It was also deemed at the general term that this judgment" practically amounted to one for the payment of a sum of money. If this latter view is correct, the Code provision as to the presumption of payment might be applicable. But I am unable to agree either in this view or in that which sees in the lapse of twenty years a necessary legal bar to the enforcement of a judgment awarding the possession of land. Section 376 of the Code of Civil Procedure, by its language, is limited to final judgments, or decrees, for the payment of moneys, and it is only with respect to them that presumptions of payment may obtain and control from the lapse of twenty years. The judgment in an action for the recovery of the possession of land cannot properly or in a legal sense be said to be a judgment for or directing the payment of moneys. It is a judgment for the property itself, and if the present judgment fixed the amount of rent in arrear (a fact of which, in the absence of the judgment-roll, we are not informed), that would only be an incidental feature, bearing upon the defendant’s privilege of redemption and upon the amount of moneys' collectible through the same writ, as due the plaintiff. The effect of the judgment was to terminate the lease, ■and the virtue of the writ is in placing the holder of the judgment in possession of the property. But before and since the ■ enactment of the Code of Civil Procedure the defendant in ejectment was allowed up to a certain period of time, after dispossession through an execution of the judgment, to redeem upon payment 6f the rent in arrear and the costs adjudged. But the legal effect of the judgment being to destroy the defendant’s tenure of the property and to award the property to the plaintiff, what legal presumption can arise by the mere lapse of time thereafter and from non-action by the plaintiff, as to the condition of the judgment? It could only be satisfied, in one sense, by the restoration of the land; but its force and effect could be averted by the defendant’s paying up his arrears of rent and thus keeping the possession of the property. That result, however, is not the satisfaction of the judgment; it is the intervention of the statute in behalf of the tenant of the land and which prevents the judgment from being carried into effect. So it seems to me that we cannot hold, directly or by analogy, that a presumption of satisfaction at