[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 262 That Van Rensselaer was seized of the premises out of which the rent accrued was, so far as concerned the defendant, who held under Sipperly, abundantly established by the fact that Sipperly entered thereon in allegiance to Van Rensselaer's title, out of which Van Rensselaer reserved for himself, his heirs and assigns, a perpetual annual rent, which Sipperly, for himself, and for his heirs and assigns, covenanted to pay; and, until something is shown to the contrary, the relation created by the respective covenants between Van Rensselaer and Sipperly, and their respective assigns, is presumed to have continued up to the time this action was commenced; and unless Sipperly, or some one bound by his covenant to pay rent, has paid it, or been released from his covenant to pay, this action was well brought and maintained by the plaintiff, as the assignee of Van Rensselaer, against the defendant, who has succeeded to and holds under his title to Sipperly, notwithstanding the strict relation of landlord and tenant does not exist between them. (Van Rensselaer v. Hays,19 N.Y., 68, 99; Same v. Read, 26 id., 558, 580.) Other cases to the same effect might be cited. If this action had been brought to recover rent which had accrued more than twenty years before its commencement, and payment had been pleaded, evidence to repel the presumption of payment arising from lapse of time would have been requisite; but as it was brought to recover rent, every cent of which accrued within twenty years, it was only necessary to produce and prove the covenant to entitle the plaintiff to a finding that the rent for the period claimed remained unpaid, for the reason that, without some evidence of payment of the rent which had accrued within that time, the presumption of non-payment would attach. The burden of establishing that the *Page 264 covenant sued upon had been released or otherwise extinguished was then cast upon the defendant, who offered no evidence on the subject, nor was evidence given by either party upon any point tending to establish a release of the covenant; but, because none was given, the referee, in the absence of evidence, and against the legitimate presumption that all rents which had accrued more than twenty years prior to the commencement of the action had been paid, did find the fact now relied upon to establish the release of the covenant, viz.: "that there was in arrear and unpaid all the rent provided for from the date of the contract," and why did he so find, not because there was any evidence on the subject, but as he in substance reports, because there was "no evidence of any payments," and now because when the plaintiff established his right to recover the rent sued for, he did not go on and prove that some payments had been made for previous rents (this is the substance of the report), it is insisted that it should be adjudged that not only the rents which had accrued more than twenty years before action brought on it, as well as those sued for and rents yet to become due, had been extinguished, or in other words, that the defendant had been released from his covenant to pay, and hence, because of the strong presumption arising from the plaintiff's omission to prove that some rent had been paid (when no evidence was given to prove that some payments had not been made), the referee erred in his conclusion of law that the plaintiff was entitled to recover, such is in substance the defendant's case, and it is quite enough to say of it that it is wholly unsupported by reason or authority and manifestly unsound. But concede the fact of non-payment to have been squarely found, and that the omission to prove that some rent had been previously paid was sufficient evidence that a payment of rent had never been made from the 1st of January, 1799, when the first annual rent became payable, to the commencement of this action in March, 1863, a space of something over sixty-three years, and that the referee, by finding that fact in effect, found as well in fact as in law that the presumption arising therefrom was not, under *Page 265 the circumstances, of sufficient strength to prove that the defendant had been released from his covenant to pay. The question is therefore presented whether in either conclusion he erred. In considering this question it must be borne in mind that it is no business of ours to determine whether the rent, that has been over due more than twenty years and not sued for, is presumed to have been extinguished, that is, disposed of by statute, but whether the rent which has accrued within that time, as well as the accruing rent to be paid annually forever, had been released. The covenant sued upon was not lost, as the covenant in another case to which I shall presently refer was alleged to be, but was in possession of the plaintiff and produced and read in evidence by him. The question would naturally arise, why, if the defendant had been released, this covenant to pay accruing rents was permitted to remain in the plaintiff's possession uncanceled. The inference drawn by the referee, undoubtedly, was, that notwithstanding no previous payment had been made, the covenant to pay those for which suit was brought, and the accruing rents, had not been extinguished by release or otherwise. If the question thus determined by him was one of fact, we are bound by his conclusion; if, on the contrary, the presumption arising from the non-payment was, under the circumstances, so conclusive in its nature as to deserve judicial sanction as a question exclusively of law, the referee erred; otherwise he did not. To prove that it merits such sanction, we are referred to Livingston v. Livingston (4 Johns. Ch. R., 294). That was a case like this, in one respect; the covenant was to pay rent forever. In another it was stronger for the defendant than this; the lapse of time was less. There the time that had elapsed was something over forty-four years; here it was something over sixty-three years. But that case had in it three features which this has not, and which were the main contributions to its distinctive character, as one of law rather than of fact. That was a covenant by a son to his father, the counterpart of which had never come to the knowledge of the executor, who, after the *Page 266 lapse of forty-four years, filed his bill alleging this fact, and that no rent had ever been paid upon it and asking for a discovery and relief. The absence of the covenant was not accounted for; the idea of its loss lacked verity; and the chancellor, under all the circumstances, presumed that the counterpart, not accounted for, instead of being lost had been surrendered or canceled. That was a case between father and son; the affection of the father for the son would be a natural cause for surrendering to the son his obligation to pay rent. This, with the fact that the covenant never came even to the knowledge of the executor, and that its absence or loss was not accounted for, would require but a slight additional circumstance to satisfy any reasonable mind that it had been surrendered. In this case the covenant was between strangers, without the element of such affection as would induce its surrender. The covenant was not lost, but was produced and read in evidence, and without a single circumstance to create distrust as to its validity, except the mere omission to prove that rent had never been paid upon it, which, at best, was but a slight circumstance; and, when considered in connection with the fact that the plaintiff produced and read the covenant in evidence, it became much less than prima facie evidence of a release of the covenant, if not quite insignificant. The inclination of our courts, as indicated by a recent case, is not to go beyond the strict letter of the statute, in presuming an extinguishment of a sealed obligation to pay from mere lapse of time. Our statute provides that, "after the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished." In the case of Lawrence v. Ball (14 N.Y., 477), an instrument under seal to sell and convey land on the payment of the purchase price which the vendee covenanted to pay, and after the lapse of forty-one years after the last payment became due, and thirty-five years after any recognition of the vendee's liability to pay, the devisee of the vendor brought ejectment against a party in possession under the vendee who claimed *Page 267 to own the land, on the ground that it had been paid for, and as evidence of payment he relied upon the presumption arising from the lapse of time since the recognition of any liability to pay. But the court held that such presumption applied only to actions brought to enforce the payment of money, and when thus brought the right of action would be presumed to be extinguished. But as the action brought was for the recovery of the possession of the land, for the payment of which the covenant had been given, and not upon the covenant for the recovery of money secured by it, the defendant could not shield himself by the presumption that the party who sued for the land had been paid for it. And thus the court, while denying the plaintiff the right to collect the money presumed to have been paid, permitted him to recover the land presumed to have been paid for, upon the ground that the statute did not relate to actions other than for money. The case is an extreme one, and cited only for the purpose showing the disinclination of the court to extend to a party the benefit of the presumption of the extinguishment of covenants from mere lapse of time, except in cases to which the statute applies. I am unable to discover a reason, founded upon principle or authority, for disturbing the judgment appealed from.