The present is an action for the recovery of rent upon one of the Van Rensselaer titles, which have been so frequently before this court. The general principles affecting these conveyances are well settled. It has been held that the conditions contained in them, that the grantee should pay rent, and that the grantor or his assignee might bring his action of covenant for the rent, or that he might re-enter upon condition broken by the grantee or his assignee, are valid. (De Peyster v. Michael, 6 N.Y., 648;Van Rensselaer v. Hayes, 19 N.Y., 68; The Same v. Ball, id., 100; The Same v. Dennison, 35 id., 393; Same v.Barringer, 39 id., 9.)
I purposely omit all discussion of these points, or of the principle by which they are reached. If numerous and pointed decisions of the Court of Appeals can settle anything, it must be held that, in its general character, this action is maintainable. The case, however, presents a point which has never been before this court, and which involves a grave question. The conveyance was made by Stephen Van Rensselaer *Page 269 to Frederick Sipperly, in 1793, on the 30th day of July. By various assignments, the interest of the grantor has become vested in the plaintiff. The defendant became the owner and possessor of the premises described in the deed in 1851, by devise from his father. His father had been the owner and possessor of them for thirty years before his death. The trial occurring in 1864, it then appeared that, for at least forty-three years, the defendant and his father, whose title he held, had been the undisputed owners and possessors of the premises. It was held and reported by the referee, as a fact in the case, that there was in arrear and unpaid all the rent provided for from the date of the contract. In other words, no rent was ever paid.
The finding of the referee, that there was in arrear and unpaid all the rent provided for from the date of the contract, was based upon the fact that there was no evidence of any payments. This conclusion was justly drawn. A creditor sues upon a note which has matured many years before the trial, and which has upon it no receipt or indorsement. The case needs no further proof. The law thereupon adjudges that there have been no payments, and that the whole amount of the note is unpaid. If the debtor claims that payments have been made, he must give the proper proof to establish his claim. Until such proof is made, the presumption of law is in favor of the creditor. A mortgage, payable in installments, running through a long period of years, is presented in court, unaccompanied by evidence of payments; the law adjudges that no payments have been made. If the defendant here had made actual proof that no payments had ever been made, the case would have stood just as it now does. A presumption unrebutted is equally conclusive with positive proof. This is the universal rule, except where the statute of limitations or its analogy is interposed as a defence. Whether the statutes of repose, and the considerations which govern the courts in the quieting of ancient claims, will permit a recovery, and to what extent, is another question. Although unpaid in fact, the question of recovery or no recovery may depend upon *Page 270 other principles. No rent having ever been paid, the period of non-payment extending to the length of seventy years, there being no evidence of a claim by the grantor or his assignee for its payment, or an acknowledgment of its existence during that period, by the grantee or his assignees, the grantee having been in uninterrupted possession during the term, is the instrument presumed to be extinguished by payment or surrender?
In the General Term of the third district, this question has been twice presented. In Tyler v. Heidorn (46 Barb., 439), which was an action to recover possession of the premises, it was held that these facts formed no defence to the action, and that the plaintiff could recover. In Lyon v. Chase (51 Barb., 13), which was an action on a covenant for the rent, it was held by the same court that the rent must be presumed to have been paid or the instrument surrendered, and that there could be no recovery.
It is to be observed that there is no evidence or suggestion that either the creditor or debtor resided abroad, or was absent from the country for any part of the time. Stephen Van Rensselaer resided in Albany; Sipperly and the Heydorns upon the premises in question, a few miles distant from Albany. Neither is there evidence of insolvency or inability to pay on the part of any of the grantees. (1 Ph. Ev.; Cow. Hill's Notes, pp. 566 [678]n, 193.)
The books present the question of the presumption of payment or surrender in several different aspects. I do not pause to consider the distinction between the presumption of a surrender and the presumption of a payment. It does not necessarily arise here.
1. As to sealed instruments generally the rule is undoubted that, after the great lapse of time existing in this case, payment will be presumed. So, where a surrender is necessary to affect a defence, so great a passage of time will authorize the presumption that it has been made. This rule applies to mortgages, and to estates held upon conditions, and in actions at law as well as in suits in equity. *Page 271
In Giles v. Bauemar (5 John Ch. R., 545-9), Chancellor KENT says that the presumption of payment, founded on lapse of time, does not always proceed on the belief that the thing presumed has actually taken place, but they presume the fact for the purpose and from a principle of quieting the possession. "These presumptions," he says, "are founded in substantial justice and the clearest policy. If a party having knowledge of his rights will sit still, and, without asserting them, permit persons to act as if they did not exist, and to acquire interests and consider themselves as owners of the property, there is no reason why the presumption should not be raised. It is therefore well settled that the presumption that a demand has been satisfied prevails as much in this court as it does at law. Claims the most solemnly established upon the face of them, will be presumed to be satisfied after a certain length of time. Matters of record, a deed and even a private statute, may be presumed to make a good title." In the case before him, which was an action to forclose a mortgage, he held that the mortgage must be presumed to be paid. There had been a period of forty years in which no interest had been paid or demanded, the mortgagor being regularly in possession. He lays down the general rule as existing both at law and in equity, that a mortgage is not evidence of a subsisting title, if the mortgagee never entered, and there had been no interest paid or demanded for twenty years; that these facts authorize the presumption of payment. He cites numerous English authorities to this effect, and in our own courts the cases of 3 Johns. R., 386; 7 id., 283; and Jackson v. Wood, 12 id., 242.
In Jackson ex dem Martin v. Pratt (10 John. R., 382), where no possession had been taken under a mortgage, nor any interest paid nor any steps taken to enforce it for nineteen years, it was held not to be a subsisting outstanding title, and that a jury might presume it satisfied.
In Fox v. Phelps (20 Wend., 437), an estate was devised to Henry and Isaac Thorne, upon the condition that certain *Page 272 moneys should be paid to their sister Abigail Thorne. In an action of ejectment brought by the grantee of the divisees, it was held that when twenty-nine years had elapsed after the accruing of the cause of action, the performance of the condition would be presumed.
In Belmont v. O'Brien (12 N.Y.R., 394), a sale having been made of certain premises in the city of New York, the purchaser refused to complete the purchase, on the ground that the record showed an incumbrance upon the property by two mortgages, one given sixty-six years before the sale and the other eighty-four years before the sale. On reference to a referee, he reported the existence of the mortgages, recorded, and "that no evidence was given before him of the payment of any portion of the principal or interest or of any acknowledgment of indebtedness upon either of said mortgages at any time, whereupon he found and reported that said mortgages had been paid and satisfied." The Court of Appeals held that the presumption of payment attached, and that the mortgages constituted no valid objection to the title.
The English cases are numerous, to the effect that where mortgages have lain dormant for twenty years, the mortgagor being in possession, and no payments having been made, they are presumed to have been paid. (Stewart v. Nicholls, 1 Tamlyn, 307; Trait v. White, 3 Burns' Ch. Cas., 289; Christophers v. Sparke, 2 Jac. Walk., 223, 234.) Auxiliary circumstances will raise the presumption of payment in a shorter time. (Sackett v. Sackett, 7 Wend., 94.)
It is said in 1 Phillips' Ev. (supra, 682 marg. n. 193), "All other sealed instruments or specialties are subject to the same doctrine of presumptive payment, satisfaction or performance, according to the nature of the obligation, as a bond, e.g., a single bill (McDowell v. McCullough, 17 Serg. R., 51), a sealed agreement to pay for land (Jackson v. Hotchkens, 6 Cow. R., 401), and an obligation to convey land (Barnett v.Emerson, 6 Monroe, 607), a sealed lease and the rent due upon it (Bailey v. Jackson, 16 John. R., 210), or articles of agreement (Darke v. Clayton, Finch, 246; *Page 273 Phillips v. Mornan, 3 Bibb., 105). So on a covenant against incumbrances, accord and satisfaction were presumed twenty years after breach (Jenkins v. Hopkins, 9 Pick., 543)."
The same doctrine extends to judgments (1 Phill., same page), and to powers of attorney to confess judgments (id.), and to portions charged on real property (id).
2. It is said that this rule does not affect the grantor's title when applied to the case of a lease, with rent reserved, and not paid for many years. It is said that the lease may continue, although the rent may be presumed to have been extinguished by the lapse of time; and that the entry having been made under the lease, the continuance of that relation will be presumed, and that a defence to an action of ejectment brought by the lessor to recover possession, cannot be maintained on the ground of such presumed extinguishment. Of this class isFailing v. Schenck (3 Hill, 344), which was an action of ejectment. There a lease for thirty years had been executed by Failing in 1786, reserving a wheat rent. The action was in 1840, by Failing's son, against a grantor of the lessee, to recover possession of the premises. There was no evidence that any rent had ever been paid on the lease. The plaintiff recovered. In delivering the opinion in the Supreme Court, sustaining the judgment, Judge COWEN says, "I am inclined to think that had the question been material the case was a proper one for saying that the rent due on the lease executed by Nicholas Failing must be presumed to have been extinguished; had an action been brought for that, at least the question of extinguishment might have been proper for the jury. But I find no case which holds as a consequence that we are to presume the relation of landlord and tenant broken up, so as to let in an adverse possession during the continuance of the lease. Take it that upon the circumstances you may presume the rent extinguished shortly after the lease was executed, and even suppose a release of all claim for rent. The only result, as it appears to me, is that the lessee is to be deemed as having held for the residue of the term, discharged of the *Page 274 rent; not that the reversion was extinguished also, or that a state of things arose which entitled the landlord to enter, and therefore let in the statute of limitations to run against him by reason of an adverse possession in his tenant, or indeed in any other person. The statute of limitations, quoad the land, does not turn upon the right of the landlord to receive rent, but on his power to enter. * * * The right of possession was outstanding in virtue of the lease, and had ejectment been brought by the heirs of Failing (during its continuance), that per se, would have constituted a bar." To the same effect is Jackson v.Davis, 5 Cow. (123-131), where Judge SUTHERLAND says, that lapse of time presumes payment of the rent and of the amount due on mortgages, but not an extinction of the title. This he holds cannot be presumed from mere lapse of time, but must arise from other facts and circumstances.
On the other hand, I find in Phillips' Evidence (1 Ph. Ev., p. 699, marg. n, 193, 29) the following: "It has been strongly intimated, though not directly decided, that delay by a landlord for twenty years to enter for a forfeiture of his tenant's rights by the non-fulfillment of condition, shall, under the statute of limitations, operate as a bar to his right of entry. (See Lord KENYON, Ch. J., and ASHURST, J., in Doe ex dem Tarrant v.Heiler, 3 T.R., 172-3.) That long delay would be a powerful argument for a waiver of the right, in connection with other circumstances, and that it would in time be full evidence of a waiver, there can be no doubt. (Doe ex dem Tarrant v. Heiler, 3 T.R., 162; Malone v. Malone, 1 Ball Beal., 32, note a.) And a distinct act, or even a declaration, directly incompatible with the idea of insisting upon the forfeiture, done or made after and with knowledge that is incurred, will be adopted as a waiver. (Milfax v. Baker, 1 Lev., 26; Malone v. Malone, 1 Ball Beal., 32, note a.)"
It has been decided that the relation existing between the original parties to this instrument was not that of landlord and tenant. The conveyance operated not as a lease, but as an *Page 275 assignment of the interest of the grantor in the premises. (VanRensselaer v. Dennison, 35 N.Y., 393.) The condition of the parties, in respect to the presumption of payment or of surrender of the claim, would seem to be that of a grantee who held his estate by grant, with conditions.
The present, however, is an action for the recovery of the rent due from the grantee, not an action for the recovery of the possession. The defence that, from the great lapse of time, the rent is presumed to have been paid or the claim extinguished, is good, even if full force is given to the distinction made by Judge COWEN in Failing v. Schenck, supra. The action is not ejectment; the claim is not that of a tenant against his landlord that the title is gone. The estate is one upon condition, and the presumption of payment attaching from the lapse of time, there can be no recovery in an action demanding payment of the rent.
The judgment should be reversed and a new trial ordered.
All concur for affirmance, except HUNT, C., dissenting.
Judgment affirmed.