Opinion
March 1, 1907.
F.J. Moissen [ George Gru with him on the brief], for the appellant.
J. Hampden Dougherty [ George F. Murray with him on the brief], for the respondent.
This is an appeal from an order denying the motion of the petitioner to be relieved of her purchase on a partition sale. The petitioner objected to the title because of five mortgages appearing unsatisfied of record. Said mortgages were all due more than twenty years before the date of sale and there is no proof of any payment of principal or interest within said period. It appears undisputed that the mortgagor and his successors were continuously in possession of the premises, and affidavits were submitted in opposition to the motion tending to show that the mortgages were not valid liens upon the property at the time of the sale.
The petitioner relies upon the general rule that a purchaser cannot be compelled to accept anything but a marketable title, but it is well settled that after the mortgage debt has been due twenty years the presumption of payment becomes conclusive in the absence of proof of a payment within that period, and that such a presumption may be invoked in such a proceeding as this is no longer open to discussion in this State. ( Dunham v. Minard, 4 Paige, 441; Knapp v. Crane, 14 App. Div. 120; Paget v. Melcher, 42 id. 76; Forbes v. Reynard, 113 id. 306; Belmont v. O'Brien, 12 N.Y. 394; Katz v. Kaiser, 10 App. Div. 137; affd., 154 N.Y. 294; Martin v. Stoddard, 127 id. 61.)
The order should be affirmed.
HIRSCHBERG, P.J., WOODWARD, GAYNOR and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.