Opinion
December Term, 1852.
1. The statute presumption of payment on mortgages, from lapse of time, is payment at the day the debt fell due, and the legal estate revests in the mortgagor without a reconveyance.
2. As, where A. the owner of land, sold to B. and took a mortgage for the payment of the purchase money, and B. entered and continued in possession for more than thirteen years: Held, that the condition of the deed was performed at the day and the legal estate revested in B. by force of the condition.
(The case of Roberts v. Welch, 43 N.C. 287, cited and approved.)
EJECTMENT, tried before his Honor, Judge Manly, at NEW HANOVER Superior Court of Law, on the last Fall Circuit, in which the plaintiff had a verdict and judgment, and the defendant appealed. The facts of the case are sufficiently set forth in the opinion delivered by this Court.
Strange, for the defendant.
Husted, contra.
In 1812, John Walker, Sen., the owner of the (155) land, sold and conveyed it to Hanson Kelly, who, to secure the purchase money, executed a deed to Walker, to be void on condition that the money was paid on or before the expiration of three years. Kelly entered and continued in possession until 1818, when he sold and conveyed to one Tiner, who entered and continued in possession until 1819, when he sold and conveyed to the lessor of the plaintiff, who entered and continued in possession until 1837, when he was evicted by one Campbell who professed to take possession under a claim from John Walker, Jr. (the nephew of John Walker, Sen.). Campbell continued his possession, and, in 1846, John Walker, Jr., executed a deed to him in fee. Campbell died in 1850, having by his will devised the land to the defendant. John Walker, Sen., died in 1813. By a residuary claim in his will, he gives to his executors "all the rest of my property, real and personal, of which I may die possessed, or have claim to," in trust to deliver the same to his nephew, John Walker, Jr., within five years after his death, if his executors, or any two of them, should deem him deserving of it; "and declare the same in writing and file it in the court with my will." Of the exercise of this power of appointment, no evidence was offered.
The defendant insisted that the plaintiff had failed to show title; for that by the deed of Kelly to Jno. Walker, Sr., the legal title vested in him, and was still outstanding in his devisees or heirs. His Honor was of opinion that the lapse of time created a presumption, under the statute, that the debt secured by the deed was paid when it fell due, and that no reconveyance was necessary to pass the legal title back from John Walker, Sen., to Kelly. To this the defendant excepts.
There is no error. The statute (Rev. Stat., chap. 65, sec. 14) provides that the presumption of payment on mortgages shall arise within ten years after forfeiture or the last payment, on mortgages executed after 1826; and within thirteen years, on mortgages executed before that date (which is our case). Here the mortgagor and those claiming under him had been in possession for more than thirteen years, after the day of forfeiture, and there was a presumption of payment at the (156) day when the debt fell due. When one is absent and unheard of for more than seven years, there is a presumption of his death; but there is no presumption as to the time of the death, for there is nothing to refer it to one time more than to another.
But when there is a presumption of payment, from lapse of time, it is otherwise; for there is a day fixed, when the payment ought to have been made; and if made recently, there would be no difficulty as to the proof. Hence, the diversity (Best on Presumptions, sections 137, 140-47; Law Li., 188, 191), as there is a presumption of payment at the day. The condition of the deed was performed, and consequently there was no necessity for a reconveyance. The title revested by force of the condition. It is familiar learning, that if the debt secured is paid on the day of forfeiture, the estate is revested without a reconveyance. If a forfeiture takes place at law, the estate becomes absolute, and then a reconveyance is necessary, as it has become an equitable, as distinguished from a legal right to redeem and have back the estate; as is the case when part payment, after the day of forfeiture has been made — for the presumption refers to the day of the last payment. But even in such case, it seems clear, that the same grounds which raise a presumption of the payment of the mortgage debt, and consequently of the satisfaction of the mortgage, must necessarily raise a presumption of a reconveyance of the estate created to secure the debt — which has been satisfied. This doctrine has been fully and ably discussed by the late Chief Justice Ruffin. Roberts v. Welch, 43 N.C. 287.
The defendant next insisted that as Campbell took possession in 1837, under color of title, which possession had been continued for more than seven years, her title was thereby perfected. His Honor was of opinion that neither Walker nor Campbell had color of title, until the latter procured a deed from the former, in 1846. To this the defendant excepts. There is no error. We are at a loss to perceive upon what ground the idea of color of title in either Walker or Campbell can be put. Campbell pretended to none in himself, when he entered; but "professed to do so under a claim from Walker." Walker had none, because he failed to connect himself with the mortgage given to John Walker, (157) Sen., by Kelly, inasmuch as he did not show that the executors had ever conferred the legal title on him, by executing the power of appointment. Besides, if they had done so, the mortgage was satisfied, and the legal estate revested in Kelly, by force of the statute of presumptions, as the court had decided on the first point. We cannot suppose that it was intended to put the idea of color of title on the ground, that if a man has a deed and makes a conveyance, and afterwards takes possession, he can set up the old deed as color of title.
PER CURIAM. Judgment affirmed.
Cited: Grant v. Burgwyn, 84 N.C. 560; Walker v. Mebane, 90 N.C. 260; Long v. Clegg, 94 N.C. 763; Pemberton v. Simmons, 100 N.C. 320; Menzel v. Hinton, 132 N.C. 672.