All the questions in this case are fully settled by prior adjudication, except the one that there is no proof of the payment of rent since the date of the lease. The defendant claims that from the absence of such proof it must be presumed that the rent has been released or discharged. I can find no authority to sustain this claim. In Livingston v. Livingston (4 Johns., Ch. 294), the bill alleged that no rent had been paid since the date of the lease, forty-five years. In Lyon v. Chase (51 Barb., 13) it was proved that no rent had been claimed or paid for upward of twenty years. But no case has been brought to my attention, and I think none can be found, holding that from this bare fact, that no rent has been shown to have been paid within twenty years or any *Page 268 longer time, the court will presume the rent extinguished or released.
If the lease and occupancy under it are not disputed when the lessor comes into court claiming rent which has fallen due within twenty years, he has nothing more to prove to entitle him to recover. If the lessee claims that the rent has in any way been released, it is matter of defence, and he must prove it; and this he can do by showing a written release, or probably by showing that for a long period of time, not less than twenty years, no rent has been claimed or paid. This great loss of time without the payment of rent, unexplained, may win the presumption that the rent had, in some way, been released. But the court will not indulge in two presumptions; (1) that no rent has been paid, and (2) that the rent has been extinguished. (See also 46 Barb., 439; 3 Hill, 344; 25 Wend., 455; 5 Cowen, 130; 2 Johns. Ch., 287.)
I therefore favor an affirmance of the judgment.