"No action for the recovery of real estate shall be brought after twenty years from the time the right to recover first accrued to the party claiming it, or to some person under whom he claims." P. L., c. 329, s. 1.
"Actions upon notes secured by mortgage of real estate may be brought so long as the plaintiff is entitled to bring an action upon the mortgage." Ib., s. 5. *Page 197
It is the contention of the plaintiff, as we understand it, that under the terms of the mortgage, the mortgagor was definitely in default after 1889, when the last installment of the mortgage debt became due, and that a "right to recover" the mortgaged property either writ of entry or a bill for foreclosure then accrued to the mortgagee; that even though subsequent payments of interest interrupted the running of the statute, the rights of the mortgagee were barred thereby after the lapse of twenty years from the date of the last payment in 1901, and hence, that after 1921, no action for the recovery of the real estate could be maintained without proving a new promise. The status of the case with reference to the proof of new promise was considered in the opinion heretofore filed.
At the time that opinion was written the court had not had the benefit of oral argument, and it now appears that a more fundamental question is involved, i.e., whether the rights of the mortgagee came within the operation of the statute at all. Although the language of the present statute is broad enough to include any right to recover real estate by virtue of a mortgage, the authorities are clear to the effect that the statute will not operate to bar the rights of a mortgagee unless it is shown that the possession of the mortgagor has, for twenty years, been adverse to him. The reason for this rule is found in the language of the statutes which preceded the one now in force and the decisions thereunder.
By a statute approved June 19, 1805, it was provided that "no person or persons. . . shall make any entry into any lands, tenements or hereditaments . . . or shall sue or maintain any action for the recovery or obtaining possession thereof, unless such person or persons . . . or the person, or persons under whom they respectively claim, have been seized or possessed thereof within twenty years next before the making such entry or commencement of such suit, and in default thereof, such person or persons . . . shall forever after be excluded from making such entry, or from suing or maintaining an action for the recovery thereof." Session Laws, June, 1805, p. 14; 7 N.H. Laws 414.
In order to claim the protection of this statute, the proper plea in a real action was "that no person by, through, or under whom the demandant claims, has been seized or possessed of the land within twenty years, next before the commencement of this action, "Moore v. Frost, 3 N.H. 126, 127, and the statute only operated to bar the rights of those who had not, within twenty years, had seizin or possession of the property in question. Thus, in Barnard v. Edwards, *Page 198 4 N.H. 107, 109, it was said by Richardson, C. J., "We are of opinion that the statute of June 19, 1805, section 1, applies only to actions, entries and claims founded on some previous seizin or possession of the lands, tenements, or hereditaments demanded, from which seizin or possession the time of limitation may be dated."
It has also been held in this state from the earliest times that, "in contemplation of law, and with a view to the protection of the rights of the mortgagee by action, he is deemed to be the owner, and the mortgagor as being in possession under him." Sheafe v. Gerry, 18 N.H. 245, 247. "The mortgage, immediately upon its execution, vests in the mortgagee, and those claiming under him, the seizin as well as the title" of the estate. Furbush v. Goodwin, 29 N.H. 321, 332; Chellis v. Stearns, 22 N.H. 312, 314.
As a result of this conception of the legal situation arising upon the execution of a mortgage it was naturally held, under the statute of 1805, that in the absence of proof that the possession of the mortgagor has become hostile to that of the mortgagee, "the seizin of the latter is preserved by the permissive occupation of the former; and no length of time can constitute an effectual bar to his entry, or to the maintenance of any action that presupposes one." Sheafe v. Gerry, supra.
The statute of 1805 was superseded in 1842 by Revised Statutes, c. 181, s. 1, which reads as follows: "No action for the recovery of any real estate shall be maintained, unless such action is brought within twenty years after the right first accrued to the plaintiff or to any person under whom he claims, to commence an action for the recovery thereof." With only slight verbal changes this provision has remained in force down to the present time.
Although the act of 1842 made very considerable changes in the language of the law, its purpose was obviously similar to that of the statute of 1805, and from the beginning it seems to have been regarded as having exactly the same effect. In Robie v. Flanders, 33 N.H. 524, 528, this interpretation was definitely adopted and it was there said that the purpose of the general revision of the statutes was "merely to reenact the former limitation in briefer and simpler terms. . . The substance therefore of the two statutes is in reality exactly the same, although the phraseology is somewhat changed." In accord therewith is Foster v. Marshall, 22 N.H. 491, 495.
In Howard v. Hildreth, 18 N.H. 105, 107, when speaking of the act of 1842, it was said: "The statute, therefore, does not apply to a mortgage, at least not until the mortgagee elects to enforce his *Page 199 title for the purpose of availing himself of his security," and in Tripe v. Marcy, 39 N.H. 439, the former rule in regard to mortgages was fully restated. It was there held that until a mortgagee elects to treat the possession of the mortgagor as a disseizin, or until the mortgagor actually disseizes the mortgagee by some unequivocal act hostile to his title, the possession of the mortgagor is to be regarded "as permissive, and bearing, in many respects, a close analogy to a strict tenancy at will or at sufferance, . . . the mortgagor is in with the privity and assent of the mortgagee, and in subordination to his title; . . . and until such actual disseizin by the act of the mortgagor, or by the election of the mortgagee, the possession is not adverse, but in privity with the mortgagee, and the statute of limitations does not begin to run."
The rule thus laid down has frequently been recognized and applied, and must be regarded as established law. Hodgdon v. Shannon, 44 N.H. 572, 578; Clough v. Rowe, 63 N.H. 562; Perkins v. Eaton, 64 N.H. 359; Frye v. Hubbell, 74 N.H. 358, 360.
Since the court found that the possession of Edwin A. Dawes was not adverse to the holder of the mortgage, the ruling that the mortgage was not barred by the statute of limitations was correct.
Although the effect of the foregoing rule, as a practical matter, is to remove mortgages, in most instances, from the operation of the statute of limitations, the consequences of this rule are in turn limited by another principle which is equally well settled and which has been stated as follows: "Twenty years unexplained possession by the mortgager bars the right of the mortgagee to the land upon presumption that the mortgage debt has been discharged. So twenty years unexplained possession by the mortgagee bars the right to redeem upon the presumption that the right has been released or abandoned, and in some way lost." Perley, C. J. in Green v. Cross, 45 N.H. 574, 584; Tripe v. Marcy, 39 N.H. 439, 448, 449; Clark v. Clough, 65 N.H. 43, 78; Frye v. Hubbell, 74 N.H. 358, 360; but "this presumption is repelled by any act recognizing the validity of the mortgage." Frye v. Hubbell, supra; Clark v. Clough, supra; Tripe v. Marcy, supra. This principle furnishes the basis for the widely accepted rule of thumb that the rights of a mortgagee are barred after twenty years from the date of the last interest payment.
In the present case we must conclude that the presumption of payment which might have arisen from the mortgagor's unexplained occupation of the property for twenty years was repelled by other competent evidence, for it is found that "Edwin never paid anything *Page 200 on the mortgage after 1901." It follows that the trial court was right in its ruling that "the defendant Batchelder was entitled to the fund to be administered as a part of the estate of Robert J. Dawes," provided the amount of the fund does not exceed the amount of the mortgage debt, with interest. The order must, therefore, be
Decree for the defendant.
All concurred.