Crooker v. Crooker , 49 Me. 416 ( 1860 )

The opinion of the Court was drawn up by

Cutting, J.

It has been well settled, that, notwithstanding the production of a mortgage and notes secured thereby by the mortgagee, after the lapse of twenty years from the time of payment and no possession taken or foreclosure attempted, such continued possession by the mortgager raises the legal presumption of payment, which presumption casts the burden of proof on the party whose duty it is to overcome it. Joy v. Adams, 26 Maine, 330; Howland v. Shurtliff, 2 Met., 26.

Had the case at bar been similar to those cited, the ruling in relation to the burden of proof would have been erroneous. But it is not so; for the present case discloses the fact that — "the mortgaged premises had been held in dower by one Hannah Crooker, widow of Jonathan Crooker, from whom both parties derived their titles.” Consequently, the mortgagees were not authorized to take possession during the life-estate, and one of the material elements constituting the legal presumption was wanting. Therefore, upon the evidence, as admitted, the instructions to the jury were as favorable to the petitioners as they were legally authorized to expect. Exceptions overruled, and

Judgment on the verdict.

Tenney, C. J., Rice, and Goodenow, JJ., concurred. May and Davis, JJ., concurred in the result.