Hogeboom, J.
The facts of this case lie within a narrow compass. The plaintiff, by action commenced in 1855, seeks to foreclose a mortgage under seal, executed in 1835, for a debt falling due in 1836, which mortgage was accompanied by a promissory (unsealed) note to secure the same debt. The mortgage contains no covenant to pay, but the condition is that the instrument shall be void, if the above sum, with interest, is paid on the 1st of February, 1836, “ in the manner particularly specified in the condition of his (the mortgagor’s) certain bond or obligation bearing even date herewith.” The mortgage was duly acknowledged and recorded. The answers interposed several defenses; and among others, the defense [283]*283of payment; and that the plaintiff’s cause of action was harred by the statute of limitations, in consequence of its not accruing within six years before suit brought. The justice before whom the cause was tried, without a jury, came to the conclusion, upon the evidence, that there was an unpaid balance due on the note, and that he should have given judgment for the plaintiff, but for the fact that more than six years had elapsed since the said note became due, and the cause of action thereon accrued prior to the commencement of this suit; and for that reason he gave judgment for the defendants. The case therefore presents the question, whether a debt secured by a sealed mortgage and an unsealed note can be enforced by a foreclosure of the mortgage, after the expiration of six but before the expiration of twenty years from the time when the debt became due. As has been said, there is no covenant in the mortgage to pay the debt; but at the same time the debt, its amount and the time of payment, are specified in the mortgage; and it is provided that in case “ default shall be made in the payment of all or any part of the said principal sum of two hundred and fifty dollars, or the interest thereof, at the time or times when the same ought to be paid as aforesaid, that then, and in such case,” the mortgagee may sell and dispose of the premises, &c. The true question, therefore, would seem to be, has the mortgage been paid? or, rather, in this case, is the lapse of six years since the maturity of the note, without any subsequent recognition or acknowledgment of the debt, conclusive evidence of payment ? The justice trying the cause has come to the conclusion, upon the evidence, that a part of the debt is actually unpaid. Is there a legal bar to giving effect to that conclusion by rendering judgment for the plaintiff, in consequence of the lapse of time before mentioned. If this is substantially an action upon the note, then it is barred, for it is an action upon simple contract, and must he brought within six years. (Code, § 90.) And the plaintiff in such case fails, not because the debt is in fact shown to be paid, but because the law forbids [284]*284the action. The remedy is taken away. But this is not in he good without the note. If there had been no note, but only the evidence of the debt recognized in the mortgage, is there any doubt that the mortgage could have been enforced The only question would be, was there a debt remaining unpaid ■—a security upon real estate—and was the lien enforced during the period that the law gives it legal existence. The additional recognition of the debt, in the shape of a 'promissory note, ought not to detract from its force. It is said that note is the principal, and the mortgage only the incident; that is, that it is given only as a security for the note. In a s e certain sense, this is true. But in fact the debt itself is tlr principal thing, and the note is one form of security for, o: evidence of, the debt, and the mortgage another. Suppose the mortgage contained a covenant to pay the debt, would it note (if negotiable) -would have some facilities for an easy transfer, and might be negotiated independent of the mortgage. If so transferred, it would in law carry the mortgage with it, and so would the mortgage carry the note with it. The payment of either would be the payment of the other, except so far as a bona fide holder of the, note for value is concerned, who might, under the law applicable to commercial /paper, be protected. It is said that the note, from the lapse of time, is presumed to be paid. Not altogether so; for the law allows a suit upon it, and a recovery, unless the statute of limitations is pleaded. It is therefore, at most, but a presumption ; suffered to be overthrown, it is true, only in one way, and that is, by proof of payment thereon, or recognition thereof, in the way pointed out in the statute. This, however, as before stated, only acts upon the remedy. It is an arbitrary and an artificial rule, not to be carried, I think, beyond the well-defined limits of the statute itself. The case of Jackson v. Sackett, (7 Wend. 94,) is much relied on as deciterms or effect an action upon the note. The mortgage would after the debt became due, and for twenty years afterwards ? be any the less the principal thing than the note ? True, the [285]*285sive authority in support of the bar. That was ejectment upon a forfeited mortgage, secured also by a note. The tenor of Mr. Justice Sutherland’s able opinion is towards regarding the lapse of six years, unexplained, as sufficient evidence of payment. But he held that the bar was not absolute, and that circumstances tending to show that the note was unpaid were proper for the consideration of the jury, and a new trial was in fact granted for withdrawing the case from the jury. We are not precisely apprised by the case at bar what circumstances here exist; but we are told in the case itself that the plaintiff gave evidence “ tending to show that there was due upon the mortgage about the sum of $70; that no part of the said sum, or the interest thereon, had been paid.” And the judge also says, “ I am entirely satisfied from the evidence that there is an unpaid balance due on the note, and should have decided in the plaintiff’s favor, except for the legal bar above stated.” The late chancellor (Walworth) doubts, and even denies, the authority of the last cited case, in Heyer v. Pruyn, (7 Paige, 465,) and goes so far as to say that it “ cannot be law.” The cases in Massachusetts and Connecticut, and one in Kentucky, hold that notwithstanding that “ the note may be barred by the statute of limitations, yet if it has not been paid, the mortgagee has his remedy on the mortgage.” (Thayer v. Mann, 19 Pick. 535. Bush v. Cooper, 26 Mass. (4 Cush.) 599. Eastman v. Foster, 8 Metc. 535. Baldwin v. Norton, 2 Conn. 163. 14 B. Monroe (Kentucky) 307. See also 2 Cox’s Chancery Cases, 125; Spears v. Hartly, 3 Esp. R. 81, 2; Hilliard on Mortgages, 21, 22.) The case of the Bank of the Metropolis v. Guttschlick, (14 Peters, 19,) declares a kindred and nearly analogous principle. The case of Waltermire v. Westover (14 N. Y. R. 16) has also, particularly in the reasoning of Mr. Justice Selden, some bearing upon the present case. In that case the lien of a justice’s judgment, which according to the statute would be barred after six years for the purpose of bringing an action thereof was, when a transcript was filed in the county clerk’s [286]
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Hogeboom, J.
The facts of this case lie within a narrow compass. The plaintiff, by action commenced in 1855, seeks to foreclose a mortgage under seal, executed in 1835, for a debt falling due in 1836, which mortgage was accompanied by a promissory (unsealed) note to secure the same debt. The mortgage contains no covenant to pay, but the condition is that the instrument shall be void, if the above sum, with interest, is paid on the 1st of February, 1836, “ in the manner particularly specified in the condition of his (the mortgagor’s) certain bond or obligation bearing even date herewith.” The mortgage was duly acknowledged and recorded. The answers interposed several defenses; and among others, the defense [283]*283of payment; and that the plaintiff’s cause of action was harred by the statute of limitations, in consequence of its not accruing within six years before suit brought. The justice before whom the cause was tried, without a jury, came to the conclusion, upon the evidence, that there was an unpaid balance due on the note, and that he should have given judgment for the plaintiff, but for the fact that more than six years had elapsed since the said note became due, and the cause of action thereon accrued prior to the commencement of this suit; and for that reason he gave judgment for the defendants. The case therefore presents the question, whether a debt secured by a sealed mortgage and an unsealed note can be enforced by a foreclosure of the mortgage, after the expiration of six but before the expiration of twenty years from the time when the debt became due. As has been said, there is no covenant in the mortgage to pay the debt; but at the same time the debt, its amount and the time of payment, are specified in the mortgage; and it is provided that in case “ default shall be made in the payment of all or any part of the said principal sum of two hundred and fifty dollars, or the interest thereof, at the time or times when the same ought to be paid as aforesaid, that then, and in such case,” the mortgagee may sell and dispose of the premises, &c. The true question, therefore, would seem to be, has the mortgage been paid? or, rather, in this case, is the lapse of six years since the maturity of the note, without any subsequent recognition or acknowledgment of the debt, conclusive evidence of payment ? The justice trying the cause has come to the conclusion, upon the evidence, that a part of the debt is actually unpaid. Is there a legal bar to giving effect to that conclusion by rendering judgment for the plaintiff, in consequence of the lapse of time before mentioned. If this is substantially an action upon the note, then it is barred, for it is an action upon simple contract, and must he brought within six years. (Code, § 90.) And the plaintiff in such case fails, not because the debt is in fact shown to be paid, but because the law forbids [284]*284the action. The remedy is taken away. But this is not in he good without the note. If there had been no note, but only the evidence of the debt recognized in the mortgage, is there any doubt that the mortgage could have been enforced The only question would be, was there a debt remaining unpaid ■—a security upon real estate—and was the lien enforced during the period that the law gives it legal existence. The additional recognition of the debt, in the shape of a 'promissory note, ought not to detract from its force. It is said that note is the principal, and the mortgage only the incident; that is, that it is given only as a security for the note. In a s e certain sense, this is true. But in fact the debt itself is tlr principal thing, and the note is one form of security for, o: evidence of, the debt, and the mortgage another. Suppose the mortgage contained a covenant to pay the debt, would it note (if negotiable) -would have some facilities for an easy transfer, and might be negotiated independent of the mortgage. If so transferred, it would in law carry the mortgage with it, and so would the mortgage carry the note with it. The payment of either would be the payment of the other, except so far as a bona fide holder of the, note for value is concerned, who might, under the law applicable to commercial /paper, be protected. It is said that the note, from the lapse of time, is presumed to be paid. Not altogether so; for the law allows a suit upon it, and a recovery, unless the statute of limitations is pleaded. It is therefore, at most, but a presumption ; suffered to be overthrown, it is true, only in one way, and that is, by proof of payment thereon, or recognition thereof, in the way pointed out in the statute. This, however, as before stated, only acts upon the remedy. It is an arbitrary and an artificial rule, not to be carried, I think, beyond the well-defined limits of the statute itself. The case of Jackson v. Sackett, (7 Wend. 94,) is much relied on as deciterms or effect an action upon the note. The mortgage would after the debt became due, and for twenty years afterwards ? be any the less the principal thing than the note ? True, the [285]*285sive authority in support of the bar. That was ejectment upon a forfeited mortgage, secured also by a note. The tenor of Mr. Justice Sutherland’s able opinion is towards regarding the lapse of six years, unexplained, as sufficient evidence of payment. But he held that the bar was not absolute, and that circumstances tending to show that the note was unpaid were proper for the consideration of the jury, and a new trial was in fact granted for withdrawing the case from the jury. We are not precisely apprised by the case at bar what circumstances here exist; but we are told in the case itself that the plaintiff gave evidence “ tending to show that there was due upon the mortgage about the sum of $70; that no part of the said sum, or the interest thereon, had been paid.” And the judge also says, “ I am entirely satisfied from the evidence that there is an unpaid balance due on the note, and should have decided in the plaintiff’s favor, except for the legal bar above stated.” The late chancellor (Walworth) doubts, and even denies, the authority of the last cited case, in Heyer v. Pruyn, (7 Paige, 465,) and goes so far as to say that it “ cannot be law.” The cases in Massachusetts and Connecticut, and one in Kentucky, hold that notwithstanding that “ the note may be barred by the statute of limitations, yet if it has not been paid, the mortgagee has his remedy on the mortgage.” (Thayer v. Mann, 19 Pick. 535. Bush v. Cooper, 26 Mass. (4 Cush.) 599. Eastman v. Foster, 8 Metc. 535. Baldwin v. Norton, 2 Conn. 163. 14 B. Monroe (Kentucky) 307. See also 2 Cox’s Chancery Cases, 125; Spears v. Hartly, 3 Esp. R. 81, 2; Hilliard on Mortgages, 21, 22.) The case of the Bank of the Metropolis v. Guttschlick, (14 Peters, 19,) declares a kindred and nearly analogous principle. The case of Waltermire v. Westover (14 N. Y. R. 16) has also, particularly in the reasoning of Mr. Justice Selden, some bearing upon the present case. In that case the lien of a justice’s judgment, which according to the statute would be barred after six years for the purpose of bringing an action thereof was, when a transcript was filed in the county clerk’s [286]*286office, recognized as of equal validity and duration with that of a judgment originally entered in the common pleas, and extended to ten years as against subsequent creditors. It is true, much stress was laid upon the language of the statute giving such a judgment the same force and effect as a judgment of the common pleas, but much stress was also laid upon the fact that there was nothing to prevent the enforcement of such a lien, except the language of the law of limitations; and it was considered that that language might be appropriately limited to cases directly within its terms; that there was reason for saying that the debt still remained, notwith-. standing the statute had cut off the remedy when resorted to in the shape of an action. A distinction was drawn between the institution of a suit upon the justice’s judgment and the enforcement of it as a lien upon real estate; and I think here a distinction may be drawn between an action upon the note for the purpose of enforcing a personal liability, and an action upon the mortgage for the purpose of enforcing the lien upon the real estate. This question, in this state, may be said to be nearly res nova, and I feel authorized to follow the weight of judicial authority elsewhere, resting as I think it does upon principle, especially as the case in 7th Wendell is not directly hostile to the rule here suggested. The judgment should be reversed, and a new trial granted, with costs to abide the event.
Gould, J. At the December term, 1858, this case was submitted upon briefs, without oral argument. And on that submission I wrote this brief opinion:
The mortgage is defeasible on condition that $250 be paid. /The statute of limitations effects not the right to the money, but the remedy therefor. It says to the creditor, not “ you are paidbut, “ you cannot call on a court of law to enforce payment.” And the defense in this case is, not that the mortgagor has complied with the condition; but that, if he were sued at law on the note, the statute of limitations could [287]*287be interposed as a legal bar to a recovery. Very true; but he is not sued on the note; and the plea (by answer) does not pretend that he has performed the condition; which, and which only, would defeat the mortgage-title. He does not bring himself within the equity of the defeasance; and the title remains good, under seal, it is asserted, within twenty years, and it can be defeated only according to the tenor of the defeasance. This view is sustained in Heyer v. Pruyn, (7 Paige, 470,) and is precisely and very satisfactorily covered by the case of Thayer v. Mann, (19 Pick. 535.) There should be a new trial.
As this opinion was thought to overrule the case of Jackson v. Sackett, (7 Wend. 94,) my associates deemed it best to have a full argument before coming to such a result; and on such argument it now comes up.
My views remain unchanged.; and though it is rather diffi- ; cult to say what the case of Jackson v. Sackett did decide, still, if to order a new trial in this case, that case must be reversed, I should order the new trial. That case founds its reasoning on the basis that the statute of limitations is a defense, \ because the law, from lapse of time, presumes payment. I do not so understand the statute of limitations. I understand mere lapse of time to be a full defense, because the statute says so: “ Ita lex scripta; ” and there is need of no such presumption to help out an absolute rule. But that case departs from its premise, of presumption of payment being merely the basis of a positive statute bar, when it says, (at p. 100,) “ but the presumption arising from lapse of time is but evidence to the jury, from which they may infer that the debt has been satisfied.” This, though true on a question of fact, (as to actual payment,) cannot be said of a legal presumption arising1, from an admitted fact. The lapse of time was either a bar,: or no bar. If, by the statute, a bar, it needed no help from '• presumption. If not, by the statute, a bar, no presumption ] could help it. i
But since my first opinion was written, there has been pub[288]*288lished a decision, (given indeed in 1857, but not then printed,) by which the court of appeals clearly takes the view that I did. (Waltermire v. Westover, 4 Kern. 16.) At page 20, “ such statutes act upon the remedy merely, and not upon the debt.” And at pages 21,2, “ If statutes of limitation do not discharge the debt, but act exclusively upon the remedy, upon what principle of interpretation is it to be held that this statute, which is in terms confined to the remedy by action, operates to annihilate a remedy by execution ? The statute does not operate by producing any presumption of payment; but is a mere statutory bar, founded in principles of public policy.”
[Albany General Term,
May 2, 1859.
Wright, Gould and Hogeboom, Justices.]
In the case before us, the statute of limitations (where it speaks of the lapse of six years as a bar) is in terms confined to an action at law on the note; and cannot operate to annihilate a remedy on the mortgage, by which a court of equity cuts off the equity of redemption. The decision in Ath Ker~ nan is abundant authority for ordering a new trial in this case.
The judgment of the circuit court; should be reversed/and a new trial ordered; costs to abide the event.
Weight J., concurred.
New trial granted.