Jackson ex dem. Mackay v. Slater
New York Supreme Court
This was an action of ejectment, tried at the Clinton circuit in June, 1829, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff claimed the premises in question, under a mortgage executed by one John Blake to William Mackay, bearing date February 10, 1790, given to secure the payment of $1225, on the 1st January, 1791. On production of the mortgage, and shewing title in the mortgagee, the plaintiff rested.
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This was an action of ejectment, tried at the Clinton circuit in June, 1829, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff claimed the premises in question, under a mortgage executed by one John Blake to William Mackay, bearing date February 10, 1790, given to secure the payment of $1225, on the 1st January, 1791. On production of the mortgage, and shewing title in the mortgagee, the plaintiff rested. The plaintiff moved for a nonsuit, on the ground that by presumption of law, the mortgage was paid. The judge intimating his opinion that on such evidence there could be…
1Opinion of the Court
By the Court,
Savage, Ch. J.
It is contended' on behalf of the plaintiff that though the lapse of 20 years without the payment of interest or the recognition of the mortgage by the mortgagor or those claiming under him raises a presumption of payment, yet that presumption may be rebutted, and is rebutted in this case by the foreclosure.
It is not correct to say, in any case, that lapse of time is evidence of payment. Lapse of time raises a presumption of payment, which supplies the place of evidence, and is conclusive, unless rebutted, 12 Johns. R. 245; but as it is only a circumstance, it may…
2Cited by10 opinions
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- Ingraham v. BaldwinNew York Supreme Court · 1851
- Appleton v. EdsonSupreme Court of Vermont · 1836
- Glezen v. HaskinsSupreme Court of Rhode Island · 1902
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