
    James A. Crooker & al. versus Charles Crooker & al.
    
    The burden of proof is upon a party alleging the payment of a mortgage, although the mortgagees have not been in possession for more than twenty years after the notes secured thereby became due, if, during that time, the premises are in possession of a tenant for life under a superior title.
    On Exceptions. Petition eor partition.
    The respondents claimed under two mortgages and the notes secured thereby, more than twenty years old. There was no evidence that the mortgagees were ever in possession of the premises for more than twenty years after the notes became due, they having been held in dower by one Hannah Crooker, under a title superior to the mortgage.
    The petitioners claimed that the notes had been paid; and the presiding Judge, Davis, instructed the jury that the burden of proof was on the petitioners to satisfy them of that fact; and it was for the jury to determine upon the whole evidence whether the notes had been paid or not.
    
      Gilbert, for petitioners.
    The jury ought to have been instructed that the presumption of law is, that the mortgage debts had been paid, and that the burden of proof was on the mortgagees to overcome the presumption. Joy v. Adams, 26 Maine, 330; /Sweetser v. Lowell, 33 Maine, 446.
    
      Whitmore and Baker, for respondents.
   The opinion of the Court was drawn up by

Cutting, J.

It has been well settled, that, notwithstanding the production of a mortgage and notes secured thereby by the mortgagee, after the lapse of twenty years from the time of payment and no possession taken or foreclosure attempted, such continued possession by the mortgager raises the legal presumption of payment, which presumption casts the burden of proof on the party whose duty it is to overcome it. Joy v. Adams, 26 Maine, 330; Howland v. Shurtliff, 2 Met., 26.

Had the case at bar been similar to those cited, the ruling in relation to the burden of proof would have been erroneous. But it is not so; for the present case discloses the fact that — "the mortgaged premises had been held in dower by one Hannah Crooker, widow of Jonathan Crooker, from whom both parties derived their titles.” Consequently, the mortgagees were not authorized to take possession during the life-estate, and one of the material elements constituting the legal presumption was wanting. Therefore, upon the evidence, as admitted, the instructions to the jury were as favorable to the petitioners as they were legally authorized to expect. Exceptions overruled, and

Judgment on the verdict.

Tenney, C. J., Rice, and Goodenow, JJ., concurred.

May and Davis, JJ., concurred in the result.  