Opinion by PARKER, J. His making the portion of the surplus divided to each subject to the same conditions imposed upon the original legacies affords no reason for supposing that he did not intend to include the widow in this division. If it is conceived that the legacy given to her in lieu of dower is given without condition, the same is true of the legacies given to his brother James Orton, his nephew Samuel De Graff Orton, and his niece Eliza Stewart, and the same consequence would result to them. But this division to each is not dependent upon the existence of a condition annexed to the prior legacies. When the legacy has such condition, the sum added from the surplus is to be subject to the same condition, is all that is meant by the language of this bequest. I think the judgment of the Supreme Court clearly right, and that it should be affirmed. Concurring, PORTER, DAVIES, GROVER, and WRIGHT. HUNT, J., was for reversal. BOCKES was absent. Judgment affirmed. JOEL TIFFANY, Opinion by DAVIES, Ch.J. NEW YORK LIFE INSURANCE & TRUST CO., APPELLANTS, v. ISAAC COVERT AND OTHERS, RESPONDENTS. Title to Real Estate Mortgage-Lapse of Time-Presumption repelled. A purchaser, finding a mortgage upon the land purchased, cannot rely upon the presumption arising from the lapse of twenty years, but must ascertain if anything has been done to repel the presumption arising from mere lapse of time. A rule holding the lien of a mortgage discharged after the lapse of twenty years from its becoming due, notwithstanding the mortgagor had paid punctually every year the annual interest, because of a conveyance of the mortgaged premises by the mortgagor without the knowledge of the mortgagee, would be unjust. The registry of such a deed is no notice to the mortgagee. W. Betts for Appellants. E. G. Lapham for Respondents. DAVIES, CH.J.-The complaint in this action was filed in August, 1853, and the suit was instituted to foreclose a mortgage dated May 1, 1829, to secure the sum of $1,400, in two annual payments. The bond and mortgage were executed by William Cornell to Daniel A. Ammerman, and by several mesne assignments were vested in the Plaintiffs. The last payment made by Cornell on the bond, while owner of the premises, was on the 26th of May, 1830. Cornell continued in possession of the premises until 1838. In 1837 he conveyed the said premises to one Bradley Clay, and continued in possession as Clay's tenant until 1838. In 1838 Clay and wife conveyed the premises to one Cornelius V. Covert, who entered and occupied the premises for a time, and then conveyed a portion of them to the Defendant Sniffin, and another portion to the Defendant Isaac Covert. On the 5th of November, 1841, Cornell, the obligor of the bond, paid on account of the debt secured thereby the sum of $100, and on the 9th of December in that year paid a further sum of $200. Judgment at Special Term was given for a foreclosure and sale of the mortgaged premises, which was reversed at General Term, and a new trial granted. Opinion by DAVIES, Ch.J. Defendants set up in their answer that said bond and mortgage had been paid, and that there was nothing due thereon. They attempted to show actual payment by Cornell of the whole amount due, but it appeared that, in 1842, he paid to one De Mott a sum sufficient to liquidate the balance due on said bond and mortgage, but that De Mott had never paid the sum over to the Plaintiffs. The Defendants then relied upon the presumption of payment created by the statute. The Revised Statutes provide that "after the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period" (2 R. S. 301, § 48). The mortgage set out in the proofs in this action is not a sealed instrument for the payment of money (See Code, §§ 162, 246). It contains no covenant for the payment of money, and does not, therefore, fall within the class of instruments enumerated in the statute. The right of action upon such an instrument, it not being for the payment of money, cannot be affected by this clause of the statute. It is well settled in this State that a mortgage is a mere security, a pledge of land covered by it for the money borrowed or owing and referred to in it (Kortright v. Cady, 21 N. Y. 343). But the mortgage ceases to have any force or effect upon the extinguishment of the debt for which it is given as security. If the debt secured was paid, then the lien of the mortgage was at an end. It becomes, therefore, the turning point in this case. to ascertain if that debt is paid. The statute, we have seen, already quoted, declares that after twenty years from the time a right of action shall accrue upon a sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment. Now this bond was a sealed instrument for the payment of money. The right of action accrued upon it on the first day of Opinion by DAVIES, Ch.J. April, 1831, when the last instalment became due. This action. not having been commenced until August, 1853, the presumption arose that it had been extinguished by payment. This is now the claim of the Defendants-not actual payment, but the presumption of payment created by this lapse of time, and the provision of the statute. In Morey v. Farmers' Loan and Trust Company (14 N. Y. 302) Judge Wright refers to this statute and the change it effected. He says: "Prior to the enactment of this provision, at common law a presumption of payment of a bond, mortgage, or other contract for the payment of money, was allowed to prevail, to the defeat of actions on those instruments, after the lapse of twenty years, or, in some cases, a less time. "Such presumption, however, might have been rebutted by any evidence, parol or written, tending to show that payment had not been made. The revisers of the statute, whilst they proposed to fix the term that should elapse before the presumption attached, did not propose to disturb the rules of evidence by which the presumption of payment might be repelled, and accordingly, as they reported the section to the Legislature, it read, but such presumption may be repelled by competent proof of an acknowledgment of such right of action within that period,' thus leaving it to the Courts to say what circumstances should be sufficient to repel the presumption. "The Legislature struck out the words 'competent proof,' and in place thereof inserted by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period,' clearly evincing an intention to restrict the repelling evidence to proof of payment of part, or an acknowledgment in writing of the right of action within the twenty years. (Revisers' notes to § 48, supra.) The intention of the statute was to exclude every description of rebutting evidence except that expressly mentioned in it. The maxim, 'expressio unius exclusio est alterius,' is as applicable to the construction of statutes as to contracts." We have thus laid down a clear and unmistakable rule to Opinion by DAVIES, Ch.J. apply to the construction of this statute. As the mortgage stands as a simple security for the debt mentioned in the bond, it follows that whenever that debt is paid, or no action can be maintained to enforce its payment, the lien created by the mortgage ceases, and it, of course, cannot be enforced. The bond given. is an instrument for the payment of money, and, if an action cannot be maintained upon it, such right shall be presumed to have been extinguished by payment. Thereupon the Defendants have set up in the answer payment of the debt, which the mortgage was given to secure, and have been allowed to prove: 1. Actual payment, and, failing in that, constructive payment by lapse of time, which the statute declares shall be deemed presumptive payment. The Plaintiffs rebut or repel this presumption by showing payments in part of that debt by the obligor of the bond given therefor, and the person primarily bound to pay the same, within twelve years before this action was commenced. It clearly follows, therefore, that at the time these Plaintiffs sought to enforce their lien upon the land pledged for the payment of this debt, that debt remained in full force and vigor, and the presumption of payment arising from lapse of time was repelled and overcome. These Defendants have no equities superior to the right of these Plaintiffs to resort to the pledge given to secure their debt. It still remains a debt due and owing to them, and their right of action upon the sealed instrument given for its payment remained in its pristine force and vigor at the time of the commencement of this action. These Defendants purchased the premises pledged for the payment of that debt with full knowledge of its existence, and we are authorized to assume that either the amount due at the time of their purchase was deducted from their purchasemoney, or, in lieu thereof, they elected to rely upon the personal covenant of their grantors to save them harmless therefrom. I cannot concur in the view that the lien is extinguished for the payment of this debt, without some act or omission of the |