
    Marion B. Allen et al. v. Adam Everly et al.
    1. The possession of a mortgagor, or of those claiming under him, continuing in the occupancy of the mortgaged premises, acknowledging the subsistence of the mortgage, is not adverse to the rights of the-mortgagee, and will not ripen into a title superior to the mortgage.
    2. Where lapse of time is not pleaded in bar to an action, but is relied on< merely as evidence of the payment of a debt, it can only raise a presumption of such payment, which presumption may be rebutted by-other circumstances, showing that the debt is not paid.
    3. A party invoking affirmative relief based on the alleged payment of a debt, must establish the fact of payment; such relief will not be-granted upon a presumption of payment arising alone from lapse of time. Though such presumption may be successfully used as a shield,, it is not equally available as a weapon of attack.
    4. As between tho parties to a mortgage, the legal title, after condition! broken, is vested in the mortgagee; and where he devises his interest in the mortgaged premises to a trustee for the benefit of his children and their heirs, the mortgagor, without having paid the mortgage-debt, is not entitled, in an action against the cestuis que trust alone, to-a decree against them for a relinquishment of their interest in the-mortgaged premises.
    Appeal. Reserved in tbe District Court of Pickaway county.
    Marion B. Allen, Sarali Barnett, and Virginia Vaile, one-of whom is the child and the others the grand children of Samuel Barnett, deceased, brought their action in the Court, of Common Pleas of Pickaway county against Adam Everly and six other defendants, some of whom are children and the others the grand children of Adam Everly, Sen.,, deceased.
    'The plaintiffs aver in their petition that they are the owners in fee simple, and are in possession of a quarter-section of land in said county; that the defendants pretend to have some claim or title thereto, when, in fact, they have no legal or equitable title to the land; that they are offering the land for sale, thereby casting a cloud on the plainifFs title, to their irreparable injury; and they pray that the defendants may be enjoined from asserting any claim to the land, and from offering the same for sale.
    The defendants answered, denying the averments of the ■petition, except that they claim to own the land and have •offered it for sale, and aver that they are the owners thereof.
    The case was appealed to the District Court, where it was •reserved for decision in this court, upon an agreed statement of facts and other evidence agreed by the parties and ■certified by the court to have been given on the trial.
    It was admitted that Samuel Barnett, the ancestor of the plaintiffs, on the 8th day of October, 1818, was seized in fee of the lands and tenements described in the petition; that he departed this life intestate, seized and possessed of ■said lands in September, 1828, leaving surviving him as his widow, Catherine Barnett; also five minor children, namely: Isaac Barnett, John Barnett, Marion Barnett, Sarah Barnett, one of the plaintiffs in this case, and Samuel Barnett; that said intestate before and at the time of his death resided on said lands, and after his death his widow and chil■•dren continued in the possession of the mansion-house and premises to the time of her death, on the 26th day of De■cernber, 1851; that the children continued (except Samuel, who died in his infancy) to reside with her till they came to be of age or married, after which they separated from her ■family, and did not otherwise occupy said lands. But the plaintiff, Sarah Barnett, continued to reside with her mother. That said John Barnett continued to reside with his mother until his death. That the plaintiff, Virginia Vaile, is the daughter and sole heir of the said Isaac Barnett, and the plaintiff, Marion B. Allen, is the daughter and ■sole heir of the said Marion Barnett, the said Isaac Barnett and Marion Barnett, who became the wife of Wilkes Allen, being both deceased intestate, the said John Barnett having also died before the death of his mother, intestate and •without issue. Sarah, in behalf of herself and Marion B. .Allen and Virginia Vaile, but in her own name, rented said land and received the rents and profits thereof, and paid the taxes and caused the repairs to be kept up until within four years before the commencement of this suit, at which time she, with the said Marion B. Alleu, entered into the actual possession of said lands, and continued in the possession thereof to the time of the commencement of this suit, claiming the same .in behalf of herself and the said Marion B. Allen, and the said Virginia Vaile as sole heirs of Samuel Barnett, deceased, and of his children, who died without issue.
    Marion B. Allen, one of the plaintiffs, testified, in substance, that she never heard of the Everly claim to the land until Adam Everly, Jr., came there from Philadelphia six years ago; that she is twenty-three years of age, and her aunt, Sarah Barnett, the only surviving child of Samuel Barnett, brought her up.
    Sarah Barnett testified: “ The whole family lived there together; after John died, and Isaac left, mother rented the farm out; mother rented the farm during her life, and at her death I rented it. After mother’s death Everly always pretended to have a claim to it, but never could show anything. I do n’t recollect when or how I first heard that he had a claim. He never sought to exercise any claim until four or five years ago. I heard mother say he had a mortgage on the place; I do not know when it became due ; I was eight’ years old when father died; do not know of any suit being commenced on the mortgage. They never sought to claim ownership over the place until young Adam Everly came out here four or five years ago. He was a grandson of old Adam Everly, and is one of the defendants in this case. I do not remember when mother first told me there was a mortgage. None of the brothers claimed the right to rent it; she claimed the right as widow of Samuel Barnett; I claimed as the heir of father and mother, and nothing else ; I had heard of the mortgage before young Everly came out from my mother; I do n’t know whether it was paid or not; I suppose they would know if it was paid off; the family was supported off of that farm; I lived with mother as long as she lived; my mother was a sister of Adam Everly’s ■wife; mother never received any letters from Everly; I never heard of any administrator on my father’s estate old Adam Everly never made any claim to the land to my knowledge; after father’s death the family lived right along without any claim one way or the other, and as they married they left, and the others remained on.”
    The defendants gave in evidence a mortgage deed of the land in question from Samuel Barnett to Adam Everly,. dated October 8, 1818, conditioned to be void on payment of $2,426, in five years from the date thereof, by Barnett or his represéntatives to Everly or his representatives; also the ■record of the foreclosure of the mortgage by Everly in the Court ,of Common Pleas of Pickaway county, in 1836, to which case the widow and heirs of Barnett were parties.
    The decree was taken pro confesso; the amount due on the mortgage was ascertained, and an appraisement of the land was ordered, which was done subject to the widow’s-dower, and the appraised value of the premises was found by the court to be less than the amount due on the mortgage. Thereupon the court adjudged and decreed as follows : “ That the defendants, who are heirs of Samuel Barnett, deceased, pay to the complainant the sum of $4,390.91,. the sum so found due to him as aforesaid, together with his costs herein expended, within six months from the rising-of this court, and that upon their so doing the said complainant do reeonvey the mortgaged premises to the said defendants, heirs of said Barnett, free of and clear from all incumbrances of said mortgage deed; but in default of the said defendants paying the said complainant such principal and costs as aforesaid, by the time aforesaid, it is further adjudged, ordered, and decreed that the said defendants do stand absolutely debarred and foreclosed of and from all equity of redemption in the said mortgaged premises, and that a writ of seizure issue on application of complainant; and it is further adjudged, ordered, and decreed that the minor defendants in this case have the term of six months after they shall come of age to contest the validity of this decree.”
    
      Documents were also given in evidence tending to show that the widow’s right of dower in the land had been sold at a j udicial sale on a judgment against her, and that Adam Everly bought it in of the purchaser-before his proceedings in foreclosure as aforesaid.
    The will of Adam Everly (thé mortgagee), made February 27, 1851, with several codicils annexed, was given in evidence, and it is agreed that no other mention of the land -described in the petition is made therein other than what is •contained in the following residuary clauses :
    “ Item. All the rest, residue, and remainder of my estate, real and personal, whatever and wheresoever, I give and dispose of as follows, to wit: “ (The testator then devised the rest, residue, and remainder of said estate in eight undivided parts to certain devisees therein named in the words following, viz:) “ One full, equal, undivided eighth part thereof I give, devise,'and bequeath unto my friend Isaac Elliot, of the city of Philadelphia, conveyancer, his heirs and assigns, to hold the same and every part and parcel thereof, with the appurtenances, unto him the said Isaac Elliot, his heirs, executors, administrators, and assigns forever in trust; nevertheless and to and for the several uses, interests, and purposes following — that is to say, in trust to let, lease, and demise the real estate, and put and place and •keep out at interest in some good and safe investment the personal estate forming such share, and collect in and receive the rents, interest, and income thereof, and after deducting therefor all legal and proper charges and expenses incident to said share, to pay the same over from time to time when and as the same shall be got in and received •unto my daughter, Susan Duplaine; and in the event of the death of her, my said daughter Susan Duplaine, without leaving any child or children or lawful issue, and without having made any last will or testament, or any appointment in the nature thereof, then in trust as regards the whole of said share of my residuary estate to and for the only purpose, use, and behoof of the rights, heir or heirs of her the said Susan, according to the then existing laws of the commonwealth of Pennsylvania, their several and respective heirs, executors, administrators, and assigns forever;” and -each separate devise of the other seven-eighths of the estate of said Adam Everly to and for the benefit of his seven other children in precisely the same language as above given, (there being separate devises for his eight children).
    Adam Everly, the grandson of the mortgagee, testified as follows : “ I went to Ohio, at my grandfather’s request, and as his business agent, to ascertain if the taxes on his farm in Pickaway county had been paid, and to inquire if the property was properly cared for. I went to the farm in the early part of the evening of November 29, 1864, and introduced myself to Miss Barnett as my grandfather’s agent. I was. invited by her into the house. I told her I did not come-to disturb her in the occupancy of the farm, but to ascertain the condition of the property and see if the taxes had been properly paid. She said yes, they had been paid, but were paid in her own name, as she supposed that would answer, and that she hoped he meant to leave her this property in his will. She acknowledged the property to be-his, and stated that hereafter she would pay the taxes in his name. I told her, in order to set the matter straight, as she had been paying the taxes in her own name, she had better give me a paper acknowledging she had been paying them on my grandfather’s account, and I then drew up a paper which I here produce, and is as follows:
    “ ‘ Walnut Township, near Circleville, 0., Nov. 29,1864.
    “ ‘ I do hereby certify that all taxes paid in my name to the-county treasurer and receiver, in Circleville, were on behalf of Mr. Adam Everly, of Philadelphia, Pennsylvania, and also those I do hereafter pay, I will pay in his name, and forward to him at Philadelphia.
    “‘Signed this 29th day of November, 1864.
    “ ‘ Sarah Barnett.
    “‘Witness: Marion B. Allen.’”
    
      “ The body of this paper is in my handwriting, and was signed in my presence by Sarah Barnett, and the signature witnessed by Marion B. Allen, one of the plaintiffs in this suit. The greater portion of this conversation, particularly that part of it relating to the ownership of the property and payment of the taxes, was in the presence of Marion B. Allen, and in her hearing. The paper was signed and delivered to me and by me to my grandfather on my return. Miss Barnett, during this conversation, made no claim to be the owner of the property, but hoped she would not be disturbed in her tenancy during the lifetime of my grandfather, and I told her she should not during his lifetime. She said the profits of the place were very light. This conversation took place in her room in the house on the farm in question.”
    His grandfather was ninety-three years old at his death. No payments have been made since his death, nor any evidences of payment found among his papers.
    John L. Green testified that he was employed as an attorney to foreclose the mortgage in question, by Colonel Cochran, the agent of Everly who lived in Philadelphia. He was instructed to do no more than obtain a decree of foreclosure, as Mrs. Barnett was a relative of Everly'"s, and he only desired to close up the matter and let her and her children remain in the occupancy and use of the land. After the decree of foreclosure, the agent paid his"fees, and his connection with the case terminated, and he has no knowledge that anything further was done by payment or otherwise.
    Henry N. Hedges testified that he has known the Barnett family since 1829, and they have been in moderate circumstances.
    Bazil Greer testified that twelve years ago he rented the farm of Sarah.Barnett, and she said Everly owned the land, but she received the rent.
    John A. Lutz testified that after young Everly was there, at his request he went to get a lease of the farm from Sarah Barnett. She neither claimed nor disclaimed the ownership of the land, but said they were poor and the Everlys were rich, and began to cry. Asked her what the farm rented for; she said $200. He declined to have anything to do with it. He proposed to young Everly that they should secure an annuity to her, and at his request made the proposition to Sarah. She accepted it, but it fell through for want of authority in the executors of Adam Everly. Marion said she claimed nothing, but wanted her aunt provided for. Afterward offered the land for sale, when this case was begun.
    Marion B. Allen testified denying that she made the statement sworn to by Lutz; and Sarah Barnett testified that the paper she signed was not read to her by young Everly as it now reads; but he testified again that she signed it deliberately after reading it.
    
      P. C. Smith and W. F. Hurst, for plaintiffs:
    I. There must be a second decree of final foreclosure before the mortgagee can assert title. It is the subsequent order, on default of payment, which creates the foreclosure. Ford v. Wastell, 2 Phillips (22 Eng. Ch.), 593; Jones v. Creswick, 9 Simmons (16 Eng. Ch.), 304; 3 Leading Cases in Equity, 612, top paging; Bolles v. Duff, 43 N. Y. 469-474; Clark v. Rayburn, 8 Wall. 318; 1 Ohio, 235; Huggins v. West, 5 Ohio 556. There never was any final order-made in this ease upon the non-payment of the money within the fixed time that the mortgage should be foreclosed.
    II. Courts of.equity will always refuse to lend their aid to stale demands, and after the lapse of twenty years from the date of the decree fixing the time for the payment of the money, the presumption that the money has been paid becomes so strong that it can not be overcome, except by an unconditional acknowledgment of the debt, or a new promise to pay. Hill v. Henry, 17 Ohio, 9; Russell v. Jandon, 16 Ohio St. 498; 2 Phillips’ Ev. 171; Angell on Lim., sec. 93; Story Eq. Pl., sec. 759a; Gren
      
      fell v. Griddelstone, 2 Younge & Coll. 662; Smith v. Clay, 3 Bro. C. C. 639; Jones v. Turberville, 2 Vesey, 13; Berrington v. Evans, 1 Younge & Coll. 434; Campbell v. Graham, 1 Russ. & Mylne, 471; Gillis v. Burremore, 5 Johns. Ch. 552; Jenner v. Tracy, 3 P. Wms. 287; Dunham et ux. v. Minard, 4 Paige Ch. 441; Tuttle v. Wilson, 10 Ohio, 26; Bowman v. Wathen, 1 Howard, 189. The doctrine of an equitable bar by lapse of time is regarded as settled law by the Supreme Court of the United States. 6 Wheaton, 481; Hughes v. Edwards, 9 Ib. 489; Miller v. McIntire, 6 Peters, 61; 1 Howard, 194; Leffingwell v. Warren, 2 Black. 599. And that time is twenty years. McKnight v. Taylor, 1 Howard, 168; Hunt v. Wicliff, 2 Pet. 212.
    III. The presumption of payment arising from lapse of time can not be overcome except by positive proof of nonpayment. In this case there is no payment of interest, no acknowledgment of an existing liability, no begging for time, no promise to pay. Neither Miss Allen nor Mrs. Vaile are bound by any acknowledgment claimed to have been made by Miss Barnett (but denied by Miss Barnett and Miss Allen).
    IV. If the decree has not been paid, the testimony shows that Adam Everly, Sen., abandoned the claim to his relatives. When rights are unreasonably neglected, the presumption is legitimate of an intention to abandon them. Tuttle v. Wilson, 10 Ohio, 26; Randolph v. Ware, 3 Cranch, 503; Sleman v. Wilson, 1 Eng. 538.
    V. Whether the defendants claim title under the mortgage or under the decree, they are equally barred of all claim to the land by the effect of lapse of time. Piatt v. Vattier, 1 McLean, 160; S. C., 9 Peters, 416; Beckford v. Wade, 17 Vesey, 87; Williamson, Adm’r, v. Adm’r of Reese et al., 15 Ohio, 572; Andrews v. Sparhawk, 13 Pick. 393; Prevost v. Gratz, 6 Wheat. 481; Howland v. Shurtlieff, 2 Met. 26; Gates v. Jacob, 1 B. Mon. 309; Hilliard on Mortgages, 5; Angell on Limitations, sec. 453; Bond v. Hopkins, 1 Sch. & Lef. 429; Stockhouse v. Barnston, 10 Vesey, 453; Thompson v. Harris’ Heirs, 10 Wheat. 146 and note; Ellendorf v. Taylor, Ib. 152; Roosvelt v. Mark, 6 Johns. Ch. 266-289; Horton v. Horner, 14 Ohio, 443; 16 Ohio, 146; Longworth v. Hunt et al., 11 Ohio St. 201.
    YI. The plaintiffs and their ancestors have held adverse-possession of this land since the year 1823. They claim to hold and held as the heirs of Samuel Barnett. They never acknowledged the claim of Adam Everly, Sen.
    The entry and the holding of this land by the heirs-of Samuel Barnett was, as to Adam Everly, Sen., tortious. Smartle v. Williams, 1 Salk. 245; Angell on Lim. 453. Color of title in Ohio, even, is not necessary to make the possession adverse. Rowland v. Rowland, 8 Ohio; Paine v. Skinner, Ib. 167; Peters v. Elkins, 14 Ohio, 344; Drayton v. Marshall, Rice Ch. 373; 8 Cowen, 588; Arrington v. Liscom, 34 Cal. 365.
    YII. The defendants in this case have no claim to or interest in this land. All the land Adam Everly, Sen., owned at the time of his death was devised to Isaac Elliott in trust to let, lease, and demise, without power to sell, and his power over the land ceases when he has rented it and collected the rents, and he is the only person who can interfere with the land; but Isaac Elliott is not claiming the land.
    
      M. A. Daugherty and F. F. Hunter, for defendants :
    The decree was final. It settled the rights of the parties. Higgins v. West, 5 Ohio, 554; Hay v. Schooley, 7 Ohio, 48; Brown v. Connecticut, 9 Ohio, 189; 2 Daniel’s Ch. Plead. and Prac. 1199.
    The plaintiffs’ claim, that “there must be a second decree of final foreclosure before the mortgagee can assert title,” is a mere matter of practice, and such was not the practice before the passage of the code. The terms of the decree are: “That in default of such payment, the defendants stand absolutely foreclosed of the equity of redemption, and .that a writ of seizin issue.” Surely there could not be any further decree of foreclosure or any more definite award* of a writ of possession. Mills v. Hoag, 7 Paige, 19.
    As to the question whether a further order of the court was necessary, finding the non-payment, the principle is the same in cases of decrees for the sale of the mort-! gaged premises in cases of non-payment of the mortgagedi debt, within a time limited by the decree, as in cases of decrees for foreclosure; and the practice is universal that orders of sale are issued in such cases, after the expiration of the limited period, without any further order.
    If, then, the legal effect of the decree be that of absolute foreclosure, after the expiration of the limited period (its- . prima fade effect at law), it is conclusive that, as between the parties and their privies in estate, the legal title vested ■in the complainant, the mortgagee, subject to the widow’s-right of possession. She being in possession and not affected by the decree of foreclosure, the complainant, the mortgagee could not, as against her, take possession under a writ of seizin to be issued pursuant to the decree without a previous assignment of her dower, at any time during the lite, nor could he put her out by ejectment, although vested with the fee, which, by operation of law, was subject to her right. See 1 Chase’s Stat. 472, June 12, 1805, and 2 Chase’s Stat. 1816, June 1, 1824.
    The decree of foreclosure was rendered April 28, 1836. The widow died December 26, .1851. The present action was commenced September 14, 1868. If the statute of limitation commenced to run on the day of the widow’s-death, some four years and upward remained before the plaintiffs would be vested with title, even if they had been in possession claiming adversely at and since the widow’s death.
    There is no presumption, in a case like this, of the payment of the mortgage debt from the lapse of time that has intervened since the decree of absolute foreclosure.
    The debt was absolutely extinguished by the decree; and the mortgagee could not demand or enforce its payment as-a debt.
    
      The mortgagor or his heirs had the privilege, under the decree, of paying the ascertained amount, of what had been the mortgage debt, within a limited period of time, and requiring of the mortgagee a reconveyance of the legal title, but there is no presumption that they exercised the privilege.
    Both parties derive title, originally, from the same source. The plaintiffs came into possession as heirs at law of their father, who was the mortgagor to' the ancestor of the defendants, against whom, as such heirs, the mortgage was foreclosed by the ancestor of the defendants, the mortgagee.
    It is not permitted either party to go behind the person from whom they hold, or show that his claim is not good. Douglas v. Scott, 5 Ohio, 197; 10 Johns. 192; 17 Ib. 165.
    Not only does it appear that both parties derive title from the same source, but it also appears that the defendants, through their ancestor, derive title directly from the plaintiffs. The legal effect of the foreclosure is equivalent to a decree of conveyance from them to him with all the same •covenants that are contained in the mortgage. See Angell on Limitations, 4 ed. 380; Cook v. Nicholas, 2 Watts & Serg. 27; Hall v. Matthews, 4 Ib. 331.
    The possession of the plaintiffs is but a tenancy at will, and they are estopped from denying the title, or acquiring any adversary title; at least till they make explicit disclaimer, such as would be notice to the defendants. Walker v. Harris, 7 Paige, 173.
    These principles apply and protect the rights of the defendants, even if the intermediate possession of the widow did not apply as claimed. Balls v. Westwood, Camp. 11, 12 (see note); Englan ex dem. Sybrun v. Slade, 4 Term, 682; see also division 4 (adverse possession) of American note to Nepean v. Doe; Taylor v. Horde, 2 Smith’s Leading Cases, 566, top paging. The possession must be “ hostile.” Zeller’s Lessee v. Eckert et al., 4 How. S. C. 296.
    Presumptions of payment are not made a basis for equitable relief. 14 N. Y. (4 Kern.) 306, Morey v. Farmers’ Loan, etc., Co.
    
    
      The case of Clark v. Rayburn, 8 Wall. 318, is, in effect, directly contrary to what is claimed for it by plaintiffs. The decree in the case was for a strict foreclosure, did not find the amount due, allowed no time for the redemption of the estate, and was made final and conclusive in the first instance. The Supreme Court held such decree could not be sustained.
   Day, C. J.

The plaintiffs claim to be the owners of the-land in question, and seek to enjoin the defendants from setting up a claim thereto. Both parties claim title from Samuel Barnett — the plaintiffs as his heirs, and the defendants by deed of mortgage from him to Adam Everly, their testator.

On the 8th day of October, 1818, Samuel Barnett, being* the owner of the land, conveyed it to Adam Everly by deed, conditioned to be void on payment of $2,426 within five-years. In September, 1823, Barnett died, intestate, leaving Catharine Barnett, his widow, and á family of children living on the land. The wife of Barnett did not join in the mortgage. After his death, the widow and some of hisehildren continued to reside on the land until the death of the widow, in December, 1851.

Everly filed a bill in chancery against the widow and heirs of the mortgagor to foreclose the mortgage, and a-decree pro confesso was entered, an appraisement of the premises was ordered, and the amount due on the mortgage • was found to be $4,390.91.

April 28,1836, an appraisement being returned, the court-found the value of the lands to be less than the debt, and made their order that the heirs pay the amount due on the mortgage, within six months from the rising of the court; and, in default of such payment, that the defendants stand absolutely foreclosed of their equity of redemption, and that a writ of seizin- issue, but upon such payment that the mortgagee reeonvey.

The dower of the widow was never assigned, and theappraisement and foreclosure were subject to her dower.. After the death of the widow, some of the children continued to occupy the premises, and nothing was done by Everly to disturb them’ until November, 1864, when he sent ■an agent to the premises, where he found two of the plaintiffs.

They do not seem to have disputed Evei’ly’s ownership of the land; and Sarah Barnett, who alone controlled the premises after the death of her mother, executed a written instrument acknowledging his right thereto. It was then .agreed that she might enjoy the premises during the life of Everly.

Everly died in September, 1865; and, about two years thereafter, the defendants being about to sell the land, this action was brought by the plaintiffs to quiet their title thereto.

The plaintiffs found their claim chiefly on two grounds: 1. Title obtained by adverse possession for a period of over twenty-one years : 2. Payment of the decree founded ■on the mortgage, thereby leaving them the owners of the land, as heirs of Samuel Barnett.

Was the possession of the plaintiffs and those under whom they claim adverse to Adam Everly? We think not. His rights as mortgagee were never disputed. The mortgagor and his family resided on the land until his death. His children, being minors, continued to live there with their mother after his death, until some of them died .and others found homes elsewhere. One remained with the widow until her death in 1851, and since then has continued in possession of the premises. But neither the widow nor children ever asserted a right to the land adverse to that of Everly. Nor did Everly ever dispute the widow’s right of dower therein : on the contrary, he protected her from embarrassment in its enjoyment by purchasing the pretended claim of a purchaser thereof at a judicial sale against hér. The children of Barnett did not ■enter upon the premises after his death as his heirs, and hold without a recognition of the mortgagee’s title. Ou ■the contrary, they suffered him in 1836, to take a decree Against them, which established, at least, his rights as mortgagee against them. The acts of Sarah Barnett, the only heir who can be claimed to have a continuous possession, unequivocally recognized the title of the mortgagee. From first to last, the plaintiffs have stood in no better position than that of a mortgagor in possession. No principle is better settled than that a mortgagor occupies by the express or implied consent of the mortgagee, and therefore his possession is not adverse. The plaintiffs, therefore, have acquired no title by adverse possession. Ang. on Lim., 5 ed., sec. 449, et seq.; 1 Hilliard on Mort. 165.

Has the amount decreed to be due on the mortgage been paid ? The time that has elapsed since the rendition of the decree raises a presumption that it has been, and this is the only evidence of payment in the case. But this presumption is one of fact merely, and may be rebutted.

There is a manifest distinction between those cases where length of time operates as a bar to an action, and those in which it can be used only as matter of evidence. In the former, it may be pleaded in bar, and is conclusive, though the debt be not paid. But when relied upon as mere evidence, it only raises a presumptive fact which may be repelled by other circumstances to be considered in arriving at the truth. Bissell v. Jandon, 16 Ohio St. 498; Brobst v. Brock, 10 Wall. 519; Baily v. Jackson, 16 Johns. 210; Shields v. Pringle, 2 Bibb, 387; Howland v. Shurtliff, 2 Met. 28.

The circumstances disclosed by the evidence clearly rebut the presumption of payment arising from lapse of time, and •show that no part of the amount of the decree was ever paid.

Are the plaintiffs, then, in a position entitling them to equitable relief? It is to be borne in mind that the plaintiffs are not defending against the enforcement of the mortgage, or the decree rendered thereon against them, but are invoking affirmative relief. But relief can not be granted upon principles of equity until the party affirmatively establishes facts which entitle him thereto. Unless that be •done, equity leaves the parties- where it found ■ them. While, on the one hand, it refuses relief, on the other it’ does not debar them from any defense either may be entitled to when aggressively attacked.

In this case the plaintiffs seek, in effect, a cancellation of the mortgage decree, and a transfer to them of the legal title held by those standing in the shoes of the mortgagee. This they ask, not that they have affirmatively shown payment of the amount of the decree in fact, but it is sought upon the ground of presumptive payment only. But if the presumption of payment, which arises from lapse-of time only, is rebutted by other circumstances, the party is left without any ground for the interposition of a court of equity.

If, however, the presumption were not repelled, is the-mere presumption of payment arising from lapse of time only sufficient to entitle a party to affirmative l’elief ? It does not follow, because such presumption may be successfully used as a defensive weapon, that it is equally available as an instrument of attack. While, on the one hand, a court of equity will not enforce a stale claim, on the-other it will not, as a general rule, grant relief upon a mere-presumption of fact. A party must show affirmatively that he is entitled to the relief invoked. He does not stand in this position-without he establishes the fact which entitles Mm to the relief sought. If it is payment of a claim,, actual payment must be shown.

In Morey v. Farmers’ Loan and Trust Co., 14 N. Y. 302, this doctrine is maintained. It was an action to enforce specific performance of a land contract. Speaking of the presumption of payment arising from lapse of time-under a statute of that state, it is said in the opinion of the court:

“ No precedent, it is believed, can be found in this state, where it has been used, save as a shield, nor any case which countenances the doctrine that a party, in a court of equity, may avail himself of it for affirmative action. It will scarcely be pretended that equity would compel the-cancellation of a bond on the mere legal presumption of payment; but the obligor would be left to his defense at law. Nor should a court of equity decree a specific performance of a contract to convey lands, relying solely on the legal presumption, from lapse of time, of payment of the purchase money, and without proof of actual payment. An action of that character is founded upon a mere equitable and reciprocal trust. In equity, the vendee is a trustee of the purchase money for the use of the vendors. The discharge of this trust by payment can not be presumed,, but must be proven.” To the same effect is Lawrence v. Ball, Ib. 447.

The controlling principle of these cases is equally applicable to this, and is decisive of the case.

The vieiv we have taken of the ease renders it unnecessary for us to determine the question made in argument,, whether the decree in question operated as a foreclosure of the plaintiff’s equity of redemption, without further action of the court finding the non-payment of the amount decreed to be due. Eor, if the equity of the plaintiffs was. not foreclosed, as already shown, the plaintiff’s are not in a position to demand the affirmative action of the court. If it was foreclosed, they have no ground of claim but that of twenty-one years’ possession under the statute. But this possession must be adverse. Waiving all other objections-to this claim, the proof, as it comes before us, will not warrant us in finding that the possession of the plaintiffs was adverse to the title of Adam Everly. Nor does it show that he abandoned his claim to the land. On the contrary, it evinces a purpose on his part, after his mortgage claim had. run for years after due, and amounted to more than the value of the land, to foreclose the mortgage and take the land for the debt, and to permit the family of the mortgagor,, who were his relatives, to occupy the farm free of charge during his life. This purpose he never changed. Fortunately for the family of Barnett, he lived to an advanced age. Now that he is dead, their long possession, acknowledged as an indulgence while he was living, is made the pretext for supplanting the heir,” that they may “ seize on his inheritance.” The enterprise can find no aid in equity.

But it is claimed that the parties who are made defendants in the case, do not show a legal title in themselves, and that the plaintiffs are therefore entitled to a decree against them. It may be replied that the plaintiffs do not show themselves to be legally entitled; for, as between the parties to a mortgage, and those claiming under them, the legal title is vested in the mortgagee. Rand v. Kendall, 15 Ohio, 671; Brobst v. Brock, 10 Wall. 519.

This claim, however, is founded on the will of Adam Everly, who devised the land in question to a trustee, in whom the legal title is vested. But, by the terms of the will, the title is to be held by the trustee for the exclusive use and benefit of the children of the testator’, and their iheirs; and it appears from the evidence that the testator was the ancestor of the defendants. They are, then, the cestuis que trust, having the full equity of the mortgagee in the premises, which is either the use of the land, or the .amount of the decree against it. The mortgage, therefore, being foreclosed or remaining unpaid, in either case, carries with the legal title in the trustee an equity in the defend.ants superior to that of the plaintiffs.

In any view, then, of the case, as it now comes before us, .the plaintiffs are not entitled to the relief invoked.

Petition dismissed.

McIlvaine, Welch, Stone, and White, JJ., concurring.  