29 Barb. 277 | N.Y. Sup. Ct. | 1859
The facts of this case lie within a narrow compass. The plaintiff, by action commenced in 1855, seeks to foreclose a mortgage under seal, executed in 1835, for a debt falling due in 1836, which mortgage was accompanied by a promissory (unsealed) note to secure the same debt. The mortgage contains no covenant to pay, but the condition is that the instrument shall be void, if the above sum, with interest, is paid on the 1st of February, 1836, “ in the manner particularly specified in the condition of his (the mortgagor’s) certain bond or obligation bearing even date herewith.” The mortgage was duly acknowledged and recorded. The answers interposed several defenses; and among others, the defense
Gould, J. At the December term, 1858, this case was submitted upon briefs, without oral argument. And on that submission I wrote this brief opinion:
The mortgage is defeasible on condition that $250 be paid. /The statute of limitations effects not the right to the money, but the remedy therefor. It says to the creditor, not “ you are paidbut, “ you cannot call on a court of law to enforce payment.” And the defense in this case is, not that the mortgagor has complied with the condition; but that, if he were sued at law on the note, the statute of limitations could
As this opinion was thought to overrule the case of Jackson v. Sackett, (7 Wend. 94,) my associates deemed it best to have a full argument before coming to such a result; and on such argument it now comes up.
My views remain unchanged.; and though it is rather diffi- ; cult to say what the case of Jackson v. Sackett did decide, still, if to order a new trial in this case, that case must be reversed, I should order the new trial. That case founds its reasoning on the basis that the statute of limitations is a defense, \ because the law, from lapse of time, presumes payment. I do not so understand the statute of limitations. I understand mere lapse of time to be a full defense, because the statute says so: “ Ita lex scripta; ” and there is need of no such presumption to help out an absolute rule. But that case departs from its premise, of presumption of payment being merely the basis of a positive statute bar, when it says, (at p. 100,) “ but the presumption arising from lapse of time is but evidence to the jury, from which they may infer that the debt has been satisfied.” This, though true on a question of fact, (as to actual payment,) cannot be said of a legal presumption arising1, from an admitted fact. The lapse of time was either a bar,: or no bar. If, by the statute, a bar, it needed no help from '• presumption. If not, by the statute, a bar, no presumption ] could help it. i
But since my first opinion was written, there has been pub
Wright, Gould and Hogeboom, Justices.]
In the case before us, the statute of limitations (where it speaks of the lapse of six years as a bar) is in terms confined to an action at law on the note; and cannot operate to annihilate a remedy on the mortgage, by which a court of equity cuts off the equity of redemption. The decision in Ath Ker~ nan is abundant authority for ordering a new trial in this case.
The judgment of the circuit court; should be reversed/and a new trial ordered; costs to abide the event.
Weight J., concurred.
New trial granted.