
    Thomas Martin, Resp’t, v. Lucy E. Stoddard et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 28, 1891.)
    
    Taxes—Sale of land fob—Abreaba&e act, chap. 114, Laws '1883-Statute OF LIMITATIONS.
    The fact that a party may appear by record to be a mortgagee does no! of itself entitle him to notice as a “person having an estate therein' under the arrearage act of 1883, chap, 114. He must be a mortgagee in ■ fact, and where the only fact which appeared was that, forty-eight years before the sale pursuant to which plaintiff obtained his deed, the mort gage described was placed on record, it will be presumed to have be i paid, and the mortgagee is not entitled to notice.
    Appeal from judgment of the general term of the city court o: Brooklyn, entered on an order affirming a judgment of the tria court in favor of the plaintiff.
    The action was in ejectment and to recover damages for at alleged wrongful withholding of real estate in the city of Brooklyn The plaintiff claimed title through a tax sale under the act, chap 114, Laws of 1883, known as the arrearage act.
    
      A. H. & W. E. Osborn, for app’lts; William, J. Gaynor, for resp’t.
    
      
       Affirming 34 N. Y. State Rep:, 111.
    
   Parker, J.

The appellants’ contention that the arrearage act chap. 114, Laws of 1883, and the proceedings had thereunder, in eluding the sale to this plaintiff, are void, has been settled ac versely to such contention by this court in Lamb v. Connolly, 12 N. Y., 531; 34 N. Y. State Rep., 140; and Terrel v. Wheeler 123 N. Y., 76; 33 N. Y. State Rep., 404.

An additional question is raised which we shall briefly cor sider. The arrearage act provides that after a sale of lands i pursuance thereof notice shall be given to' any person having a estate therein (§ 5), and that a deed shall be given to the pu: chaser at a tax sale “ upon presentation of said certificate of sal and proof of the service of the notice of such sale as hereinafte provided upon the owner and mortgagee of the said lands an premises, * * * after the expiration of one year from th date of such service.” The defendant insisting that there was mortgagee of the premises to whom notice was not given as pr< vided by statute, introduced in evidence the record of a mortgag covering the lands in controversy, dated August 3, 1837, and recorded the day following. FTo other fact appears than that about forty-eight years before the sale pursuant to' which the plaintiff obtained the deed, the mortgage described was placed on record in the Kings county clerk’s office.

The fact that a party may appear by record to be a mortgagee loes not of itself entitle him to notice. He must be a mortgagee in fact. If his mortgage be paid, although unsatisfied of record, re is not entitled to notice. And the question here presented is vhcther the evidence authorized a finding of payment? For if it lid it must be treated as having been found by the jury. The Revised Statutes (vol. 2, page 301, § 48), provided that “ after he expiration of twenty years from the time a right of action hall accrue upon any sealed instrument for the payment of money uch right shall be presumed to have been extinguished by pay-rent; but such presumption may be repelled by proof of pay-lent of some part or by proof of a written acknowledgment of uch right of action within that period.” The provision quoted ras repealed by § 73 of the Code of Procedure, and chapter 245, iaws of 1880, also provided in terms for a repeal thereof, so that íe only statutory reference to the subject in force is § 381 of the lode of Civil Procedure, which provides a limitation of time for eginning actions on sealed instruments. But the cause of action >r the enforcement of the collection of the moneys secured by ie mortgage having accrued before the Code, the question of mitation is governed by the Revised Statutes. Code of Procedre, § 73; Code of Civil Procedure, § 414; Appleby v. Brown, 1 N. Y., 143.

The mortgage has been omitted from the record before us and i the time when payment was to be made does not appear it will s presumed that it was made payable on demand. Ana the thing ■omised being the payment of money, the statute of limitations gan to run from the date of the instrument, at which time the imand could have been made. Howland v. Edmonds, 24 N. , 307; Wheeler v. Warner, 47 id., 519.

This rule of the common law has more recently been declared statute. Code of Civil Procedure, § 410. The presumption en arises from the facts appearing in the record that nearly enty-eight years before the sale of the lands in question for the n-payment of taxes the mortgagee’s right of action was extinisned by payment. Belmont v. O'Brien, 12 N. Y., 394; Morey Farmers' Loan & Trust Co., 14 id., 302; Fisher v. Mayor, 67 , 73-80.

This presumption might have been repelled by proof, (1), of ¡nnent of some part; or,

2) by written acknowledgment of such right of action within t period.

But no attempt in that direction was made. When payment is ma facie presumed from lapse of time, the presumption thus ied has the same force and legal effect as evidence, as though fact were proved in any other manner. Morey v. Farmers’ in & Trust Co, supra.

The jury were, therefore, permitted to find payment of the mortgage long prior to the date of the tax sale, and consequently that there was no mortgagee entitled to the notice provided by statute. And in the disposition of this appeal it must be assumed that such fact was found.

The judgment should be affirmed.

All concur, except Brown, J., absent.  