
    Henderson Inches, Administrator, &c., versus Desire Leonard and Others.
    Of the presumption of a mortgage’s being discharged arising from length of time.
    [In an action of ejectment upon a mortgage, where the mortgage was made to secure the payment of a note of hand, payable in three months from the date ; and, three years afterwards, the mortgagor left the Commonwealth in embarrassed circumstances, and soon after died, having, previously to the mortgage, conveyed a moiety of the land to a stranger, under whom the tenant claimed in fee, and, about six months after the mortgage, released his interest in the premises to the same person, and, after the lapse of forty years, the tenants and those under whom they claimed having been in possession under the said conveyances, and a copy of the mortgage only being produced, and it being shown that the note and mortgage were not to be found, and that the shop and counting-room of the plaintiff’s intestate, in which many of his papers were kept, were exposed during the Revolutionary war, and while Boston, where he lived, was in possession of the British troops, whereby many of his papers were lost, and there was no evidence of possession or demand of possession or of payment, until within a few weeks before the commencement of the suit; held, that payment, under these circumstances, ought to be presumed, and that the action could not be sustained.]
    This was an action of ejectment upon a mortgage of an undivideu moiety of certain lands in Taunton, alleged to have been made by one Nehemiah Liscome to Henderson Inches, the plaintiff’s intestate, dated September 24th, 1773, acknowledged and recorded the same day, conditioned for the payment of £ 87. 16s. 10d., lawful money, in three months from the date, with interest, according to the tenor of a promissory note of the same date from the mortgagor to the mortgagee.
    * On the trial of the action, which was had upon the [ * 380 j general issue, before the Chief Justice, at an adjourned session of the last October term in Bristol, holden at Taunton in May last, the plaintiff produced, in evidence, a certified copy of the mortgage deed declared on. No note was produced ; but there was testimony, on which the plaintiff relied, that, during the possession of the town of Boston, of which the said intestate was an inhabitant, by the British troops in the Revolutionary war, the shop and counting-room of the said intestate, in which many of the papers were kept, were exposed, and many of his papers were lost.
    There was no evidence of possession or demand of possession, until within a few weeks before this suit was brought ; nor any evi- * dence of demand of payment of the note of hand. But the plaintiff proved, that, in the year 1776, the said Liscome, the mortgagor, left Taunton in embarrassed circumstances, and went to New York, then held by the British, where he acted as a suttler to the troops, and was, during that year, assassinated by some of the troops.
    The defendants produced, in evidence, an attested copy from the registry of a deed from the said Liscome, conveying one moiety of the same land to Edward Church in fee, dated May 26th, 1773, and acknowledged and recorded on the same day ; also a deed of release and quitclaim from the said Liscome to the said Church, datsd April, 1774, acknowledged and recorded on the 9th day of said April, conveying the other moiety of the said land, being the same moiety which was conveyed to the plaintiff’s intestate, as before mentioned ; also, an original deed, conveying one undivided moiety of said land from said Church to Samuel Leonard, under whom the defendants hold, dated October 14th, 1779, acknowledged on the same day, and recorded on the 22d day of the same October ; under which deed the said Leonard entered and took possession of the whole tract, and the same had been holden by him and his legal representatives until the time of the trial.
    [* 381] * A nonsuit was directed, with liberty to set it aside, in order that the opinion of the whole Court might be taken, whether the copy of the mortgage deed, under the circumstances aforesaid, could be legally admitted in evidence ; and, if it could, whether the plaintiff’s action could be maintained, without further evidence to encounter the presumption, that the debt, secured by the mortgage, had been paid, and also whether the right of action was not gone by lapse of time. If the Court should be of opinion with the plaintiff, the nonsuit was to be set aside, and a new trial granted
    
      B. Whitman, for the plaintiff.
    
      Sproat and Tillinghast, for the defendants.
   Parker, C. J.

This is the case of an administrator of a mortga gee attempting to foreclose the redemption by a judgment, forty-two years after the making and delivery of the deed, and without any entry under it, or any attempt to recover the debt by a suit on the note to which the mortgage was a collateral security, there having been an adverse possession for thirty-six years by those under whom the defendants claimed, which possession was exclusive under deeds from the mortgagor, made in the year 1779.

This statement of the case presents powerful, if not conclusive, objections to the claim set up by the plaintiff; and, in addition to these facts, the original deed was not presented at the trial, nor the collateral security, both of which, as appears from the copy from the registry of the deed, were payable in three months after their date. The copy of the deed was considered at the trial, under these circumstances, as not proper for admission to the jury ; but, the declaration having been amended, so as to contain an allegation that the original deed was lost by time and accident, perhaps it ought to have gone to the jury, with such evidence as the plaintiff could produce, tending to show the loss of the original. But, on the whole evidence which was offered, the judge being of opinion that the action could not be supported, a nonsuit v/as agreed to, with liberty to move the whole Court to take it off and grant a new trial.

The nonsuit is to * stand, unless the evidence reported is [ * 382] sufficient, in the opinion of the Court, to encounter the presumption, arising from the length of time and other circumstances appearing in the case, that the debt has been paid, and the mortgage thereby virtually discharged.

And we are all of opinion that the nonsuit ought to stand, and that a verdict in favor of the plaintiff would have been contrary to evidence, and illegal. Double the time which the law has fixed, as furnishing a presumption of payment of a debt due by specialty, has elapsed ; and the parties to the contract have long since died, without any attempt, on the part of the mortgagee or his representatives, to claim any thing by the mortgage deed. The circumstances of Liscome, in the year 1776, have but little bearing against the presumption of payment, because, according to the contract, the debt ought to have been paid a long time before ; and there is no reason why the land should not have been resorted to, after the removal of Liscome out of the country and after his death, but that the debt had been paid.

No jury would establish the claim of the plaintiff under these circumstances, in the absence of the original deed, and without even a copy of the note. The situation of the mortgagee in Boston, in the year 1776, proves only a possibility that these papers may then have been destroyed, but not a probability of that fact ; for it is not probable that title-deeds, or securities for money, would have been left in so exposed a state by a man of common carefulness. The papers left in the counting-room were probably letters and other papers which had no value attached to them, and which it might have been inconvenient to remove.

Had the cause proceeded to trial, the judge would undoubtedly have directed the jury that the debt must be presumed to have been paid ; that is, that there was no sufficient legal evidence to encounter the presumption arising from the length of time which had elapsed since the contract was made.

Whether, if the evidence had been still stronger, the defendants could have been disturbed in so ancient a possession, * by the production even of the original mortgage deed [ * 383] without any actual possession under it, need not be determined, as the cause is very clear upon the other point. The non-suit is not set aside, and judgment must be entered for

Costs for the defendants. 
      
      
        Moore vs. Cable, 1 Johns. Ch. 385. — Grant et al. vs. Duane, 9 Johns. Rep. 591. — Demurest et ux. vs. Wynkoop et at., 3 Johns. Ch. 129. — Hughes et al. vs. Edwards et ux., 9 Wheat. 489.— Collins vs. Torrey, 3 Johns. R 386. — Harkey vs. Powell, 1 Hawkes, 17. — Shepherd vs. Murdock, 1 Murph. 218. — Lamar vs. Jones, 3 H. & McH. 328.— Pomeroy vs. Winship, post, 520. —Jackson vs. Pratt, 10 Johns. 381. — Perine vs Dunn, 4 Johns Ch. 140. — Turnstall vs. M'Lelland, Hard. 519. — Slee vs. Manhattan Company, 1 Paige, 48. — Isley vs. M' Croe, 4 Dess. 432.— Ward vs. Reeder, 2 H. & McH. 154. -— Brown vs. Griffiths, 6 Munf. 450. — Lewis vs. Bacon, 3 H & McH. 89. — Murray vs. Coster, 5 Johns. Ch. 582. — Klock vs. Hudson, 3 Johns. 375. — Jackson vs. Todd, 6 Johns. 257. — Jackson vs. Hardin, 4 Johns 202 —Jackson vs. Pratt, 10 Johns. 381, Jackson vs. Wood, 12 Johns. 242. — Matthews, Pres., p. 329.
     