[After stating the facts and quoting the statute.] — In the present case, Cornell, by making payments upon the bond and mortgage within twenty years of the commencement of the suit, has repelled the presumption of payment, so far as he is concerned, and as against him the debt was valid and subsisting, — against which he had no defense.
The defendants insist, that although the debt was in full force against Cornell, yet the presumption of payment applies to them, inasmuch as they and the other owners of the equity of redemption have made no payment upon the mortgage within twenty years from the time it became due before the commencement of the suit.
The counsel, in support of this position, cites Van Keuren v. Parmalee, 2 N. Y. 523, and other cases, holding that payment by one joint debtor upon a demand does not prevent his *358co-debtor from availing himself of the statute of limitations as a defense. This is based upon the want of authority of one joint debtor to do any act. affecting the rights of the other debtor. In the present case it cannot be claimed that the mortgage debtor had any authority from his grantor, or the other owners of the equity of redemption, to act as their agent, in any respect, or to do any act affecting their rights. He could not by any act of his create or-continue any debt or liability against them without their assent.
He could not, after the conveyance by him, do any act affecting the title of his grantors. In these positions I fully concur with the reasoning of the learned counsel. But I think the present case does not come within any of the above propositions. Cornell, while owner of the premises, mortgaged the same as security for his debt.
His grantor took the title subject to this pledge. The record of the mortgage- was notice to all of the existence of the mortgage.
The land, having been pledged as security for the debt of Cornell, would so continue until that debt was in some manner discharged, unless the land was released from the lien by some act of the holder of the mortgage.
Cornell had the power to prevent the discharge of the debt by the presumption of payment from lapse of time, by making partial payment or by written acknowledgment. This he has done: consequently the debt is in full force against him. The pledge was made by him to secure this debt of his own, not to secuee any debt of the defendants, or of any owner of the equity of redemption. Subject to this lien for Cornell’s debt, his grantor and the other owners of the equity of redemption took the title, and also subject to the power of Cornell to repel the presumption of payment in the mode specified in the statute. The defense claimed was that of the payment of the debt of Cornell. The evidence relied upon for its support was the presumption from lapse of time. This presumption was repelled by proof of payment by Cornell, the debtor.
The defense of payment of the debt, therefore, failed. This was not continuing or reviving a debt against the defendants. There was no debt against them at all upon the mortgage or *359bond. Ho personal liability against them was claimed. It was not an act affecting their title. That title was always subject to the lien of this debt of Cornell’s, and all that Cornell did was to furnish the proof that the debt had not been paid. Ho presumption of payment by the defendants could' attach by virtue of the statute, for the reason that they owed no debt, nor were subject to any liability that could be satisfied. They owned the land, subject to the pledge lor the payment of the debt of another, and when they sought to discharge it therefrom, the onus was upon them to show payment of the debt; and any evidence that was competent and sufficient to prove the debt not paid was an answer to the defense, and proved the continuance of the lien.
In Heyer v. Pruyn, 7 Paige, 405, it was held that a recognition of a mortgage as an existing lien by one about to acquire title, and who did thereafter acquire it, continued the lien for twenty years after such recognition, as against him and his subsequent grantors. In Hughes v. Edwards, 9 Wheat. 489, the supreme court of the United States held that a subsequent purchaser, having constructive notice of a mortgage, by reason of its registry, was bound by an acknowledgment of a former owner within twenty years, although he had no notice of such acknowledgment.
These cases, while not involving the precise question in the present case, show that a purchaser, finding a mortgage upon the land, cannot rely upon the presumption arising from the lapse of twenty years, but must ascertain, at his peril, whether anything has been done to repel the presumption arising from that fact. The registry of a. deed given by a mortgagor subsequent to the mortgage, is no notice of such conveyance to the mortgagee. The latter is under no obligation to search for. such conveyance. A rule holding the lien of a mortgage discharged after the lapse of twenty years from its becoming due, notwithstanding the mortgagor had punctually, from year to year, paid the annual interest, because of a conveyance of the mortgaged premises by the mortgagor, unknown to the mortgagee, would be harsh and unjust.
To hold that the lien continues until the debt for which the mortgage was given was discharged by the debtor, is no hard*360ship to the purchaser of the equity of redemption. He knows of the lien when he purchases, and may at any time thereafter make payment; or otherwise, if practicable, procure its discharge. To hold a debt presumptively paid, and therefore adjudge it paid as to third persons, while it is found not paid, but in full force against the debtor, would be anomalous.
This statute is not analogous to that of limitations. This, upon which the present defense is predicated, merely establishes a rule of evidence as to payment upon sealed instruments. And the answer alleging payment of the debt was the proper mode of presenting the defense, whether proof of payment in fact, or the presumption created by the statute, was relied upon to sustain such allegation.
■ The order of the general term, reversing the judgment of the special term, and directing a new trial, should be reversed, and the judgment of the special term affirmed.
A majority of the judges concurred.
Order granting new trial reversed, and judgment of special term affirmed, with costs.