William Appleton et al. vs. Melzer Edson, 8 Vt. 239

The opinion of the court was delivered by Redfield, J. The first question raised here is, whether this defendant, being a stranger to the title, can claim to show by mere lapse of time a bar to the plaintiffs’ right of action, on the mortgage debt, in order to defeat his recovery in this action ? It is true, no doubt, that the lapse of time in this case being more than' twenty years, is, unexplained, sufficient to bar all recovery upon the bond. It is also true that the mortgage is but an incident to the bond. But it is never true that mere lapse oí time will raise a presumption of payment of the debt.

If the possession has all along been vacant, no presumption in relation to the payment of the debt or the title would arise; but this circumstance of itself would be sufficient to- rebut any such presumption. — Jackson ex dem. vs. Pierce, 10 John. 417. The same is true where the possession of the mortgaged premises is in a stranger.-Jackson ex dem. vs. Slater, 5 Wendell, 295.

And in the latter case it was held that the possession being in a stranger, did tend to raise a presumption' that the mortgagor had abandoned in favor of the mortgagee. it is a well-settled principle that when a conveyance or release is presumed from lapse of time, this presumption is made in favor of the legal estate, and to quiet always, but never to disturb a possession.

An eminent judge once said, “ he would presume any thing which might be necessary to quiet so long a possession.” — Hence if the mortgag or continues in possession twenty years after condition broken, it will be sufficient ground of presuming payment of the mortgage debt, unless interest or rent have been paid' in the mean time. — Jackson ex dem. vs. Wood, 12 John. R. 242-. If the mortgagee has been in possession, a release of the equity of redemption will be presumed.

Deeds and conveyánces of every kind almost, and sometimes against all rational grounds of belief, for the' purpose of quieting a long possession, and preventing injustice from some technical lapse have been presumed, but never in favor of a stranger, or of a vacant possession ,’'or against the legal title, which in this case has all along been in the plaintiffs’ grantor.— Hence we feel clear that no such presumption could arise in the present case. — 2 Williams’ Saunders, 175,and cases referred to. — Higginson vs. Wain, 4 Cranch, 415 — 2 Pet Cond. 155.

A second question was decided in the court below, and has been here very elaborately discussed, and as it is important to the final ^eterminati°n °f £he case, the court have passed upon it. The \question is, whether the deed from William Sullivan to plaintiffs void by reason of an adverse possession.

This being a deed from the cestui que trust to the trustee, the plaintiff being heir to the estate, of which Sullivan was administrator, and the mortgage originally having been taken to secure payment of a debt due the estate, it is only such a conveyance as a court of equity would have compelled the parties to have made. And in every case where the conveyance is by operation of law, as by levy of execution (1 D. Chip. Rsp. 139) or sold by Marshall of the United States, (Aldis adm’r of Gadcomb vs. Adams, Chit. Co. Jan.

T. 1836,) or where Chancery would compel a conveyance, as was some years since held in a case decided in Bennington County, not yet reported, in any such case, if the parties make a conveyance, it is not rendered void by reason of an adverse possession at the time-in a stranger. We feel very certain then that the case under consideration is not within the spirit and intention of the statute declaring conveyances void by reason of an adverse possession. This statute is only in affirmance of the doctrine of the common law.

The object of this prohibition seems to have been to prevent speculations in “ choses in action,” or in other words, “ the sale of law suits.”— Hence where the conveyance is to one in possession, the statute does not operate. And as between the cestui que trust and trustee, after the statute of 27 Henry VIII., called the Statute of Uses, the statute transferred the legal to the equitable estate with the possession, and thus there was no need of a conveyance.

And without reference to the doctrine of the Statute of Uses, a conveyance of the legal estate to him who is beneficially interested, is good to convey the legal title, notwithstanding an adverse possession in a stranger. This is not among the class of cases intended to be reached by the statute, as it never required livery of seizin. The judgment of the county court is therefore reversed, and a new trial granted.