Jackson ex dem. People v. Pierce

Where a person, who had a mortgage of lands, was afterwards at-tainted, it was held that the mortgage might be set up against the people, ashavmg succeeded to the rights of gor. Where a ™aTiSamedor«rant from March, 1802, it was held, that after deducting the period of the American war, the lapse of time was sufficient to afford the presumption of payment. But the period of 20 years is only a circumstance on which to found a presumption, and is not, of itself, a bar. And where the attorney-general and surveyor-general, to whom the petition of the occupants of lands mortgaged by a person attainted, had been referred, by the senate, in March, 1802, reported the mortgage as^yt^tanding, and a balance due thereon, this was held sufficient to repel the presumption of paymeiitySeSpecially when connected with olher circumstances. Where a mortgage is%?yen of an undivided part or share in a large tract of land; and on partition, the right or share of'-Hhc mortgagor is allotted in severalty, the mortgage will be considered as attached to the part so assigned as the share of the mortgagor, and will cover his whole interest therein.

THIS was an action of ejectment, tried at the Oneida circuit, in June, 1813, before Mr. Justice Yates. • Letters patent under the colonial government, dated the 12th of June, 1771, were granted to William Bayard and fifty-four others, of whom William Kane and A. M‘Bougal were two, for 50,000 acres of land, known by the name of Freemasons’ pa{enf and formerly called the Oneida purchase. Kane and ve 1 M‘Dougal released in fee to Jphn Weatherhead all their undivided shares in the tract, on the 19th of October, 1771. The iract was divided by commissjdners of partition, appointed by an act of the legislature passeothe 10 th of April, 1787. By the partition, lots No. 5. and 98. fell to the share of Kane, and lots No. 28. and 64. to M(Dougal. Weatherkead was attainted, by the act of attainder of the 22d of October, 1779. The premises in question are a part of great lot No. 5. The defendant proved that Weatherkead, on the 2d of March, 1773, executed a mortgage deed to Thomas Warnald and others, of Leeds, Great Britain, for two fifty-fifth parts of the said tract, that is to say, two fifths of the said two fifty-fifths, to secure the payment of a bond given by him to W. and F., dated the 5th of August, 1772, for 243Z. 2s. lOd. sterling, in one year, with interest at 5 per cent., and three fifths to T. and H. W., to secure a bond given them, on the 12th of August, 1772, for 367Z. 18s. 5d. sterling, payable in one year, with interest. The mortgage contained covenants of seisin, quiet enjoyment, Sec. and for payment of the money. On the bond to W. and F. there was an endorsement, dated the 29th of April, 1774, of the payment of 4QZ. on account of interest, and on the bond to T. and U. W. an endorsement of the same date, of a payment of 58Z. Is. Ad. on account of interest. On the 19th of March, 1803, the mortgage was assigned to John Thurman. On the 29th of March, 1802, the attorney-general and surveyor-general, to whom had been referred by the senate the petition of the occupants of the land, made a report, that there was due on the said mortgage 6,653 dollars and 24 cents, and that it was not advisable for the state to redeem the mortgage, but that it would be proper to sell the land subject to the mortgage. Kane, on the 30th of April, 1795, demised lot No. 5. to one D. Rindge, for 21 years, at the annual rent of one shilling per acre; and on the 3d of February, 1800, being shown his release above mentioned, he assigned the indenture of demise to Thurman, to whom the tenant attorned by endorsement on the lease, and regularly paid the rent to him. The defendant claimed to hold by assignment under Rindge. Lot No. 98. had also been demised by Kane to A. Case, who assigned the lease to Thurman. No part of the Freemasons’ Patent was settled or inhabited, until about the year 1786, and the premises in question remained a forest, and uncultivated, until about the time Kane made the lease to Rindge.