Opinion
October 21, 1897.
PRESENT: Matteson, C.J., Stiness and Tillinghast, JJ.
When a mortgagor remains in the possession of the mortgaged premises for more than twenty years, without paying interest on the mortgage note, or recognizing it as an existing obligation, there is a presumption that the mortgage has been paid or released.
BILL IN EQUITY for an accounting under, and the foreclosure of, an unrecorded mortgage many years outstanding. Heard on pleadings and proofs.
Irving Champlin, for complainant.
James Tillinghast, William R. Tillinghast and Theodore F. Tillinghast, for respondents.
The testimony shows that the mortgagor has remained in possession of the mortgaged premises for more than twenty years, without the payment of interest, or a recognition by him of the mortgage as an existing obligation. These facts give rise to a presumption that the mortgage has been paid or released. 2 Jones Mort. 4 ed. §§ 1195, 1196. Consistently with this presumption, the respondent, Levi Staples, testifies that his mother, the mortgagee, forgave him the mortgage debt, and in this he is corroborated by the testimony of his wife, and also of his brother Charles. We think, therefore, that the bill must be dismissed with costs.