Williamsburgh Trust Co. v. Gottsch

121 N.Y.S. 890

Opinion

ASPINALE, J.

It is now well-settled law in this state that purchaser at a judicial sale will be compelled to take title, notwithstanding the fact that the premises are covered by a mortgage unsatisfied of record, providing the mortgage was due more than 20 years before the date of the sale and no proof exists of any payment of principal or interest within that time. The mortgage in question bears date April 3, 1877, and was made payable on demand, which would bring it within the time limit. More than 20 years having elapsed, the presumption of payment becomes conclusive, in the absence of any proof of payment, and the burden is on the purchasers to rebut this presumption. This they have failed to do. I therefore find that the title is a marketable one, and the purchasers should be required to complete their purchase. See Ouvrier v. Mahon, 117 App. Div. 749, 102 N. Y. Supp. 981, and cases there cited.

Motion granted, with costs.