Jackson ex dem. People v. Wood

Per Curiam. 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 [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 [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..