
    KIRK vs. PARKHILL.
    At Law.
    No. 9099.
    I. Where a defendant in ejectment sets up an outstanding mortgage belonging to a stranger to the record, in which he does not claim to be interested, it must be a present and subsisting mortgage; otherwise it will be presumed to have become extinguished.
    II. Where a mortgage was executed and recorded more than forty years before the commencement of an action of ejectment, it is presumed to be satisfied, and the court can so rule without the aid of a jury.
    STATEMENT OP THE CASE.
    This was an action of ejectment by the plaintiff to recover from the defendant a certain lot of land in the city of Washington. The bill of exceptions shows that on the trial the plaintiff gave in evidence the recorded allotment of square 536 in said city by the United States commissioners to Daniel Carroll, dated November 5, 1796, and which allotment embraced the premises described in plaintiff’s declaration. The plaintiff also gave in evidence several deeds by which he deduced a continuous chain of title from said Carroll to himself
    The defendant, for the purpose of showing title out of the plaintiff, offered in evidence a mortgage upon said premises, executed by said Carroll and wife, to the president and directors of the Bank of Washington, dated October 21,1821, and properly recorded; and thereupon defendant’s counsel prayed the court to instruct the jury that the said mortgage was an outstanding title which barred the plaintiff’s right to recover; which instruction the court refused to give, but instructed the jury to find for the plaintiff', to which refusal and instruction the defendant, by his counsel, excepted. The question now before the general term is, whether this exception is well taken.
    
      
      M. Thompson, for plaintiff, made the following points, and cited the following authorities :
    Carroll, by the mortgage-deed, conveyed the legal title to the president and directors of the Bank of Washington, where it has ever since remained. Williams on Real Property, 354; Taylor’s Landlord and Tenant, sec. 703 ; Douglass, 21; Jamieson vs. Bruce, 6 G. and J., 74; Brown vs. Cram, 1 N. H., 172; Heighway vs. Pendleton, 15 Ohio, 735; McElery vs. Smith, 2 H. J., 72; Evans vs. Merriken, 8 G. and J., 39.
    Carroll, not having the legal title, could not create a trust. 2 Washburne on Real Property, 195, sec. 11; Crop vs. Norton, 2 Atk., 76; Downe vs. Thompson, 9 Ad. and E., 1030.
    The plaintiff cannot recover without strict proof of legal title. 1 Saunders, 454.
    
      R. Ross Perry for defendant, among others, relied upon the following points and authorities:
    A mortgage is presumed to be satisfied after the lapse of twenty years, unless there has been some action under it or recognition of it within that period. 2 Greenleaf on Evidence, p. 169, § 528. Hughes vs. Edwards, 9 Wheaton, 497; Pratt vs. Vattier, 9 Peters, 115; Boyd vs. Hance & Harris, 2 Md. Chanc’y Dec., 210; Jackson vs. Meyers, 3 Johnson, 511; Waterman vs. Haskins, 7 Johnson, 283.
    A satisfied mortgage cannot be set up against the plaintiff, in ejectment, as a bar to recovery. Peltz vs. Clarke, 5 Peters, 481; Greenleaf’s Lessee vs. Birth, 6 Peters, 302; McKnight vs. Taylor, 1 Howard, 168, also 193; Morgan’s Lessee vs. Davis, 2 Harris & McHenry, 9.
   The Court held:

That where a defendant in ejectment sets up an outstanding title in a stranger, in which he claims no interest, it must at least be a present subsisting title; otherwise it will be presumed to have become extinguished. The deed of mortgage in this instance was recorded more than forty years before the commencement of the action, and no steps had been taken under it, and there have been repeated conveyances of the premises down to the time the plaintiff acquired his title to the same. It is a settled rule of law that a mortgage, after the lapse of twenty years, without explanatory circumstances, will be presumed to have been satisfied; and the court will apply this rule without the aid of a jury. It is not necessary in such a case to show a formal release, for the presumption is that the mortgage is no longer a subsisting lien, and cannot therefore be used in ejectment for the purpose of destroying the plaintiff’s right of action.

Judgment below is affirmed.  