Ray v. . Pearce

'Smith, 0/J. The equitable right to have the legal estate restored upon payment of the encumbering debt remained in «Clarissa, the mortgagor, after the making of her deed and after default, and such paymeut is presumed from the lapse of time since forfeiture, or the last payment reduced to ten years under the statute. Rev. Code, eh. G5, § 19. More than thirty years had passed since the forfeiture, and nearly that period since the last known payment on the secured debt, during which and for the residue of her life the mortgagor remained in the possession and use of the land without interruption from the mortgagee. "As the mortgagor,” remarks Chief Justice Ruffin, referring to the rule in England, " is shut out of redemption by the mortgagee’s possession for twenty years, it was thought reasonable and convenient that the bar should be reciprocal on the mortgagee who did not act on his debt or mortgage until the debt ivas presumed to be satisfied by .the lapse of twenty years.” Roberts v. Welch, 8 Ired. Eq., 287. The supreme court of the United States, in Hughes v. Edwards, 9 Wheat., 489, lay dowu the rule in similar terms when the mortgagor retains possession, that the" mortgage will after a length of time be presumed to be discharged by the payment of the debt or a release, unless circumstances be shown to repel it —as payment of interest or some acknowledgment of the mortgagor that the mortgage is subsisting.” The same proposition is asserted in Brown v. Becknall, 5 Jones Eq., 423, in terms equally'explicit, and the Chief Justice adds that “ loose declarations, such as are proved in the case, after the right is presumed to have been abandoned, cannot be allowed the effect Gf rebutting the presumption.” The estate thus freed from the mortgage and vested in the said Clarissa, descended to her children and heirs-at-law, *488 the intestate and bis sister, Ann, as teaant&in common, and they thus having title continue in consistent possession and use of the premises afterwards. The legal consequences of the common occupancy of the rightful owners- the defendants seek to obviate, and to show the transfer of the estate, of the one to the other tenant in common and thus vest the entirety in the latter, by proof of declarations made bjr Clarissa and her husband and by the intestate, while they were respectively in. possession,, that the land belonged to Ann Pearce. His Honor ruled and in our opinion correctly, that the evidence, though competent as qualifying and explaining the possession then held by the several parties when material in a controversy* is insufficient to warrant the jury in finding that the moiety of the intestate has been transferred to his co-tenant, thus giving- the sole seizin to her. Declarations of a party in possession are received in disparagement or qualification o-f his title and to remove its apparent hostile character, but when they proceed from the owner himself in the occupation, they cannot have the effect of divesting or changing his estate,, for the simple reason that the.title to land does not pass by parol. Hurman v. Pellett, 7 E. C. L. Rep., 75; 1 Greenl. Ev., § 109; Roberts v. Roberts, 82 N. C., 29; Ryan v. McGehee, 83 N. C., 500. The argument fo-r the defendants* pressed with earnestness, is, that the possession of the mortgage deed and bonds by the testatrix, presupposes an assignment of both to her, and that the former remains in force for the security of the latter. To this the answer is obvious. The statute raising the presumption of satisfaction of the bonds by whomsoever held, in support of the mortgagor’s long and uninterrupted possession, presumes also a reconveyance of the legal estate to her. The assignee of the bonds, if there has been an assignment, (and the possession and production of satisfied bonds and a discharged mortgage- deed fu-rnish very slight if any evidence of the alleged assignment) stands in no more *489 favorable relation to the mortgagor or the mortgage than would the assignor. The reconveyance is equally inferred against both. It is plain then that the defendants acquired their father’s share in the land by. descent, and did not derive the entire estate under the devise from their aunt of all her real estate. There is no error and this will be certified.. No error. Affirmed.