Whitney v. French

The opinion of the court was delivered by Redi'ieud, Ch. J. 1. The deed of Patchin to Whitney, must be regarded we think, ss prima facie subject, to the condition written upon the back of the deed. This seems probably to have formed a part of the deed, at the date of the record, when it would operate against the interest of the grantee, and being for the ease of the grantor, will be presumed to have formed a part of the deed, at the time of delivery. Else, it will be presumed .the grantee, would not have suffered it to be put upon the deed, subsequent to the delivery. 2. The relation of landlord and tenant being established, or rather, that of mortgagor and mortgagee, which is similar in rhany of its incidents, a question arises, how the long lapse of time, and an actual adverse possession, is to be regarded. We do not think any distinction between the rights of the ’widow, during her life, and that of the plaintiff subsequent, is to be [666] likened to that of successive estates in the reality, the one dependent upon the expiration of the other. For the interest of the mortgagee, is but a chattel interest, as is said in argument, and whether to be pursued by the devisee, or heir, or executor, or administrator, is all along in a condition to be pursued, by some one, and the operation of the presumption of payment, is not interrupted, by the succession of rights, as long as there is, all along, some one competent to pursue it. It must then be regarded, as affording a presumption of payment, from the first. That is so always, as long as the mortgagor is suffered to remain in possession, and if there is nothing in the case, but fifteen years possession, it is ordinarily to be regarded, as sufficient to justify a jury in finding the fact of payment, and is said to form a fixed bar, which cannot be submitted to a jury. This presumption, and the English bar, is in analogy, to their statute of limitations of the right of entry into lands. And the same analogy, is maintained in this State, although the term is different, being twenty years, at common law, and but fifteen years in this State. And when there is nothing to encounter the presumption, there is no necessity of submitting it to the jury, any more than there is in any case, where the testimony is all one way. But in the present case, it is claimed the presumption is encountered by opposing evidence, and should therefore have been submitted to the jury. And on the other hand, itfis claimed, that after the mortgagor conveyed by an absolute . deed, and his grantee entered into adverse possession, the mortgagee was bound to take notice of such adverse possession, and bring his-suit, within the term of'the statute of limitations, or the defendant acquired a petfect title, at-bar, by the statute of limitations. From an examination of the authorities, upon this, last point, in the case, which is the only one, regarded as difficult, we are satisfied, it will be impossible for the plaintiff to prevail, and that the ease should therefore not be opened. The conveyance here, being absolute, with full covenants, as is inferable, from the claim being immediately.adverse to the mortgage, which was upon record, and known to the purchasers, it seems unjust, and contrary to the best considered cases, to .defeat that title, after nearly twice-the term of the statute of limitations, by a mere admission,, by the mortgagor [667] of the mortgage being unpaid, or by proof of that fact, from circumstances, or express testimony. We think that the mortgagee, having acquiesced in a subsisting adverse possession, for more than fifteen years, in a purchaser of the entire title to the land, should show something, whereby the persons in possession of the premises, have recognized the subsistence of the mortgage, or at least made aware of its being made a continual claim. A contrary rule would often effect severe injustice. The law is evidently so regarded in Connecticut. Bunce v. Wolcott, 2 Conn. 27. Skinner v. Smith, 1 Day 124. Lockwood v. Lockwood, 2 Day 295. So also in New York, 4 Kent’s Com. 201. Giles v. Bonemore, 5 Johns, ch. R. 545, where the rule p. 553, is thus stated by Chancellor Kent, “ The Supreme Court (of New York) has more than once recognized the rule, that a mortgage is not a subsisting title, if the mortgagee never entered, and there has been no foreclosure, or payment of interest, within twenty years.” 3 Johns. 386. 7 Johns. 283, and notes to 2d ed. The presumption of the payment of the mortgage becomes absolute after the lapse of fifteen years, or the bar of the statute of limitations, and.no entry, or payment of interest. It is a presumption of law, and in itself conclusive, unless encountered by distinct proof. It is not to be.submitted to the mere discretion of a jury, although adversely an inference of fact, where there is any conflicting evidence. And this presumption of payment of a mortgage, or release of ah estate,, is often made, against what is believed to be the very fact, for the purpose of quieting a long adverse possession, and to prevent virtual fraud, by the setting up of dormant title, long since supposed to have become extinct. Hilory v. Waller, 12 Vesey 239, and notes to Sumner’s edition. Coolidge v. Larned, 8 Pick. 508. It is true undoubtedly, that in England, as well as in many of' the American States, the courts have held, an entry upon land, by. a stranger, or one deriving title from a stranger, or one holding a subordinate estate, as only, an eviction, at .the election of him,. who has the legal estate, while in this State, we have held all such entries, by strangers, under claim of right, to be an actual eviction of the owner, of which he is hound to take notice, at the peril of' .losing his estate, after the lapse of fifteen years. And every where the possession, being in one who may fairly be presumed to hold,. [668] in subordination to the legal title, cannot become adverse, in such a sense, as to create title by lapse of time, without .the express or presumptive knowledge of him, having the superior estate. But it does not seem to ús very satisfactory, to apply this rule, in favor of the mortgagee, who is, in one sense, the owner of the legal estate, in the land, and in another, and the more just and common sense, the possessor of a-mere chattel interest, which it was the duty of the mortgagor, after selling the land, to remove, and which after the lapse of fifteen years, and no steps taken by the mortgagee, to enforce the mortgage, it may be presumed, he has done. And we think such a presumption, in. favor of a purchaser of the land, ought not to be rebutted, short of evidence tending to show, that he was made aware of the mortgagee’s continual claim upon the mortgage. Nothing of this kind was offered to be shown. Judgment affirmed.