The act of 1862 to authorize the discharge of mortgages of record in certain cases (Laws 1862, chap. 365), and the amendments thereof by acts of 1868 (Laws 1868, chap. 789) and 1873 (Laws 1873, chap. 551), are designed to remove an existing incumbrance which has been paid in fact and not by mere presumption of law. It is required, among other things, that the petition “ shall allege that such mortgage is paid; ” not alone that twenty years having elapsed it is presumed to be paid, but that it is paid. The object of the statute seems to have been to relieve mortgagors and those claiming under them, in a summary way from an incumbrance; which, as stated in the first section of the acts, supra, from the lapse of time is presumed to be paid, if it have in fact been paid, but satisfaction of which cannot be obtained without a formal proceeding therefor in a court of equity, in consequence of the death of the mortgagee and of the fact that no letters testamentary or of administration have been granted in this State. The petition must allege that the mortgagee has been dead for more than five years, and that the letters mentioned have not been granted. (§1.)
It is true that the acts also require a statement of the assignment, if one have been made, and the “facts in regard to the same,” without exacting an averment that the assignee is dead, but that does not destroy the general design of the statute. The chief object of requiring the statement of the assignment is to enable the court to have all persons interested notified of the application, in accordance with section three of the acts. Whether there be an assignment or not, however, the court must be satisfied that all the matters alleged in the petition are true. (§4.) Satisfied of what? The principal fact is the payment of the mortgage. It must, as shown, be alleged that it is paid.
It is not proved in this matter that the mortgage is paid. The evidence is that it is not, except by presumption of law, which is *229not sufficient on this summary proceeding. The statute under consideration relates to mortgages presumed, from lapse of time, to have been paid; but it requires, as already shown, an allegation, and, therefore, proof of payment. The principle is well settled, that where a remedy is given by statute all the requirements imposed by it must be complied with. Dudley v. Mayhew, 3 N. Y. 9; Renwick v. Morris, 3 Hill, 621. Here the petitioner fails in the most important allegation — the one, indeed, upon which the whole application rests.
The order of the special term should be affirmed. The petitioner must seek relief in another mode.
Order affirmed,.