
    (117 App. Div. 749)
    OUVRIER v. MAHON et al.
    (Supreme Court, Appellate Division, Second Department.
    March 1, 1907.)
    Partition—Sale—Defect in Title—Unsatisfied Mortgage.
    After a mortgage debt on land has been due more than 20 years, the presumption of payment becomes conclusive, in the absence of proof of a payment within the period; and such presumption may be invoked in a motion by a purchaser at partition sale to be relieved from her purchase because the title is not marketable.
    Appeal from Special Term, Kings County.
    Action by Julia A. Ouvrier against Elizabeth Mahon and others. From an order denying the motion of the petitioner, Gittle Gurtz, to be relieved of her purchase on a partition sale, she appeals. Affirmed.
    Argued before HIRSCHBERG, P. J., and WOODWARD, GAY-NOR, RICH, and MILLER, JJ.
    F. J. Moissen, for appellant.
    J. Hampden Dougherty, for respondent.
   MILLER, J.

This is an appeal from an order denying the motion of the petitioner to be relieved of her purchase on a partition sale. The petitioner objected to the title because of five mortgages appearing unsatisfied of record. Said mortgages were all due more than 20 years before the. date of sale, and there is no proof of any payment of principal or interest within said period. It appears undisputed that the mortgagor and his successors were continuously in possession of the premises, and affidavits were submitted in opposition to the motion tending to show that the mortgages were not valid liens upon the property at the time of the sale.

The petitioner relies upon the general rule that a purchaser cannot be compelled to accept anything but a marketable title; but it is well settled that after the mortgage debt has been due 20 years the presumption of payment becomes conclusive, in the absence of proof of a payment within that period, and that such a presumption may be invoked in such a proceeding as this is no longer open to discussion in this state. Dunham v. Minard, 4 Paige, 440; Knapp v. Crane, 14 App. Div. 120, 43 N. Y. Supp. 513; Paget v. Melcher, 42 App. Div. 76, 58 N. Y. Supp. 913; Forbes v. Reynard, 113 App. Div. 306, 98 N. Y. Supp. 710; Belmont v. O’Brien, 12 N. Y. 394; Katz v. Kaiser, 10 App. Div. 137, 41 N. Y. Supp. 776, affirmed 154 N. Y. 294, 48 N. E. 532; Martin v. Stoddard, 127 N.. Y. 61, 27 N. E. 285.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.  