The opinion of the court was delivered by
Ross, J.The defendant, upon the court’s intimating what its ruling would be on certain matters involved, declined to go to the jury upon any disputed fact. He thereby admitted that all which the plaintiff’s evidence tended to establish was proven. The court thereupon directed a verdict for the plaintiff, to which the defendant excepted. This exception does not bring into contention the ruling intimated by the court. No exception was saved in regard to that. It only saves to the defendant the right to contend, that if all the plaintiff’s evidence tended to prove was true, he was not *539entitled to recover. The defendant now attempts to give the exception a wider scope, and to bring in question the correctness of the ruling which the court intimated it should make in the case ; but this court, as has often been decided and promulgated, is bound by the record as certified by the trial court. This excludes from consideration the question of fraud, either in regard to the genuineness of the plaintiff’s mortgage debt, or in regard to the honesty of purpose with which he took possession of the mortgaged premises. Fraud is not presumed to have entered into and tainted any transaction. Its existence is a fact to be established by evidence.
I. But if the question of fraud is not open to the defendant, he contends there was no sufficient proof of the existence of any mortgage debt due the plaintiff when he took possession of the mortgaged premises. The plaintiff introduced evidence tending to show the execution of the mortgage deed and of the notes secured thereby, and produced them in court. As the notes were overdue, when produced, the defendant contends that the presumption of law is, that they were paid when they fell due, although found in the hands and possession of the payee uncancelled. We do not understand that such is the presumption of law. A promissory-note is written evidence of indebtedness made and delivered by the maker to the payee. The purpose of making and delivering the note, is that the payee may have written evidence of such indebtedness. So long as it continues in the possession of the payee uncancelled, the law regards it as evidence of such indebtedness. When, therefore, the plaintiff produced the mortgage deed and the notes, uncancelled, in court, and proved their due execution, he produced sufficient evidence to establish prima facie the existence of the indebtedness witnessed thereby; he produced the identical evidence of such indebtedness, which had been furnished him by the maker. Against such evidence no presumption of payment arose from the fact that the day of payment had passed. Payment, under our statute and at common law, is a matter of defence, to be established by the defendant. No presumption of payment arises from the lapse of time, after *540the obligation or debt fell due, short of the period established by the Statute of Limitations. 1 Greenl. Ev. s. 15, 16 and 39. Mr. Starkie in his work on Evidence, vol. 3, pi 1090, says: “ In the usual course of business, a security, where money is paid, is either delivered up to the debtor, or destroyed, and therefore where the fact of payment is otherwise doubtful, the possession of the entire instrument by the creditor affords a presumption that it is still unsatisfied.” There was, therefore!, sufficient evidence of a debt secured by mortgage to sustain the court in directing a verdict for the plaintiff.
II. The defendant contends there was not sufficient evidence of a change of possession of the property attached by the defendant to uphold the action of the court in directing a verdict for the plaintiff. The, plaintiff’s evidence tended to show that he took possession of the mortgaged premises under his overdue mortgage, and ciit and gathered the hay and oats which the defendant attached as the property of the mortgagor. The law day having run upon the mortgage, the title to the premises, at law, became absolute in the plaintiff. He took possession as the legal owner. The growing crops were his, as much as the land on which they were standing. Whatever may be the legal character of annual crops, there cannot be any doubt but they pass with the land to a purchaser who takes the title and possession of the land while they áre still standing upon it. A mortgagee who takes possession of the mortgage premises under his mortgage for condition broken, is such purchaser. At law he is the absolute owner in possession. In equity also he is the owner of the crops growing, and to be grown by him upon the premises while in possession, and only accountable to the mortgagor for the rental value of the premises, on the redemption thereof. It is true .that such crops belong to the mortgagor who is allowed to remain in possession, and severs such crops. This is all that is decided in Cooper v. Cole, 38 Vt. 185, relied upon by the defendant. Although the plaintiff in that case had foreclosed his mortgage, he had never taken possession under it, but had agreed with the mortgagor that he should foreclose, but that the mortgagor should still have the *541right to redeem the same as before the foreclosure, but take a lease of the premises in which the plaintiff reserved the crops as security. The court treated it, as they always do such makeshifts, as not having in the least changed the relation of the plaintiff in regard to the mortgage premises, but that he was still a mortgagee out of possession, and that the crops grown thereon by the rqal mortgagor in possession were attachable by the creditors of the latter. In the case at bar, the crops, over which this contention is, were never in the possession of the mortgagor when attachable by his creditors. While growing, such crops are exempt from at- " tachment. R. L. s. 1556. They were severed by the plaintiff.while in possession under his mortgage, so that they were his property when they first took an attachable form. Since they never were attachable as the property of the mortgagor, it is difficult to understand what application the doctrine requiring a change of possession of personal property to prevent its attachment by the creditors of the vendor, has to the facts of this case. The mortgagor was not the vendor of the hay and grain attached. If a change of possession were required, the facts which the plaintiff’s evidence tended to show, were sufficient to protect it from attachment.'
The judgment of the County Court is affirmed.