Howard v. Hildreth

18 N.H. 105 | Superior Court of New Hampshire | 1846

Parker, C. J.

Aside from the provisions of the Revised Statutes, this case would readily be settled by the authorities.

Where the mortgagor has retained possession of the premises for the term of twenty years after the execution of the mortgage, without any payment, upon the debt, or any claim by the mortgagee, a presumption arises that the debt has been paid. 12 Johns. 242, Jackson v. Wood; 10 Johns. 392, Jackson v. Pratt; 2 Har. & McHen. 9, 18, Morgan v. Davis.

But this being a presumption of fact only, may be rebutted. 12 Mass. 381, Inches v. Leonard; 2 Met. 26, 28, Howland v. Shurtleff; 4 Cranch 420, Higginson v. Mein. See also 3 Brown’s Ch. Cas. 289, Trash v. White, and note. In Toplis v. Baker, 2 Cox’s Cas. in Chanc. 118, it was held that there was no general rule in that court for presuming-a mortgage satisfied after twenty years, or any other period of time elapsing without payment or demand of principal or interest, and that if a jury should presume the bond satisfied which is given as a collateral security to the mortgagee, yet the mortgagor is not thereby prevented from showing the truth of the case in that court, if in fact the money has not been paid.

The defence here is founded upon section 1, chapter 181, Eevised Statutes, which provides that “ no action for the recovery of any real estate shall be maintained, unless such action is brought within twenty years after the right first accrued to the plaintiff, or to any person under ■whom he claims, to commence an action for the recovery thereof.”

There are two reasons why this provision cannot avail to defeat this action.

The mortgage being regarded as a mere security for the debt — as a charge upon the land, and not as a legal title, until the mortgagee elects to seek his remedy upon it — we cannot hold that the cause of action accrues upon it to recover the land, within the meaning of this statute, until that election is made; and the statute, therefore, does not apply to a mortgage, at least not until the mortgagee elects to enforce his title for the purpose of availing himself of his security. Until that time, the possession of the mortgagor is not adverse.

Moreover, this mortgage- had existed more than twenty years before the passage of the statute. To apply the limitation of the statute to this case, even supposing the cause of action to have accrued on the execution of the mortgage, would give the statute a retrospective operation. 3 N. H. Rep. 473, Woart v. Winnick.

Judgment on the verdict.