§ 1931 — Discharge of record of ancient mortgages presumed paid

§ 1931. Discharge of record of ancient mortgages presumed paid. 1.\nThe mortgagor, his heirs or any person having any interest in any lands\ndescribed in any mortgage of real estate in this state, which is\nrecorded in this state, or mentioned in a deed recorded in this state,\nand which, from the lapse of time, is presumed to be paid, or in any\nmoneys into which said lands have been converted under a decree of a\ncourt of competent jurisdiction, and which are held in place of such\nlands to answer such mortgage, may present his petition together with an\nofficial search of the recording officer in whose office the mortgage is\nrecorded, or a search prepared by a person duly licensed and admitted to\npractice law in this state or by a title company duly incorporated and\nauthorized to transact business in this state showing assignments of\nrecord, if any, to the courts mentioned in this article, asking that\nsuch mortgage may be discharged of record.\n 2. Such petition shall be verified; it shall describe the mortgage,\nand when and where recorded, or if such mortgage is not recorded that\nthe same may be adjudged to have been paid and to be no longer a lien\nupon the lands therein described, and shall allege that such mortgage is\npaid; that the mortgagee has, or, if there be more than one mortgagee,\nthat all of them have been dead for more than five years; or if such\nmortgage has been assigned by an instrument in writing for that purpose\nexecuted and acknowledged, so as to entitle the same to be recorded, and\nsuch instrument of assignment has been recorded in the office of the\nclerk of the county where the mortgaged premises or some portion thereof\nis situated, and the assignee or assignees of said mortgage have been\ndead for more than five years, such petition shall state such facts, and\nno statement respecting the mortgagee or mortgagees or the names and\nplaces of residence of their heirs shall be required; or if such\nmortgagee be a corporation or association, that such corporation or\nassociation has ceased to exist and do business as such for more than\nfive years; the time and place of his or their death, and place of\nresidence at the time of his or their death; whether or not letters\ntestamentary or of administration have been taken out, or, if said\nmortgagee or mortgagees, or assignee or assignees at the time of his or\ntheir death resided out of this state, whether or not letters\ntestamentary or of administration have been taken out in the county\nwhere such mortgaged premises are situated; or if a corporation or\nassociation, its last place of business; the names and places of\nresidence, as far as the same can be ascertained, of the heirs of such\nmortgagee or mortgagees, or assignee or assignees; or, if such mortgagee\nbe a corporation or association, then the names of one or more of the\nreceivers, if any were appointed, or of the person who has the care of\nthe closing up of the business of such corporation or association, and\nthat such mortgage has not been assigned or transferred, and if such\nmortgage has been assigned, state to whom and the facts in regard to the\nsame.\n Provided, however, that if such mortgage has been duly assigned, by\nindorsement thereof or otherwise, but not acknowledged so as to entitle\nthe same to be recorded, then it shall be competent for the court, at\nany time within the period aforesaid, upon proof that all the matters\nhereinbefore required to be stated in said petition are true, and that\nthe assignee of such mortgage if living, or his personal representative\nif dead, has been paid the amount due thereon, to make an order that\nsuch mortgage be discharged of record.\n Provided, further, that in case of a mortgage which was recorded or\nadjudged to have been paid and no longer a lien, more than fifty years\nprior to the presentation of such petition, if the petitioner is unable\nwith reasonable diligence to ascertain the facts herein required to be\nstated in the petition, other than the fact of payment, the petition may\nset forth the best knowledge and information of the petitioner in\nrespect thereto and what efforts have been made to ascertain such facts,\nand if the court shall be satisfied that the petitioner has made\nreasonable effort to ascertain such facts, and that the same cannot be\nascertained with reasonable diligence, it may then, in its discretion,\nproceed upon said petition as hereinafter provided.\n 3. Such petition may be presented to the supreme court in the county\nin which the mortgaged premises are situated, or to the county court of\nsuch county.\n 4. The court, upon the presentation of such petition, shall make an\norder requiring all persons interested to show cause at a certain time\nand place, why such mortgage should not be discharged of record. The\nnames of the mortgagor, mortgagee and assignee, if any, the date of the\nmortgage and where recorded, and the town or city in which the mortgaged\npremises are situate, shall be specified in the order. The order shall\nbe published in such newspaper or newspapers, and for such time as the\ncourt shall direct. The court may also direct the order to be personally\nserved upon such persons as it shall designate.\n 5. The court may issue commissions to take the testimony of witnesses\nand may refer it to a referee to take and report proofs of the fact\nstated in the petition. The certificate of the proper surrogate or\nsurrogates, whether or not letters testamentary or of administration\nhave been issued, shall be evidence of the fact; and the certificate of\nthe clerk of the county or counties in which the mortgaged premises have\nbeen situate, since the date of the said mortgage, shall be evidence of\nthe assignment of such mortgage, or of a notice of the pendency of an\naction to foreclose such mortgage, and of such other matters as may be\ntherein stated; or if a notice of the pendency of an action to foreclose\nsuch mortgage has been filed, then his certificate that such mortgage\nhas never been foreclosed. Unless the allegation of payment shall be\ndenied, and evidence be given tending to rebut the presumption of\npayment, arising from lapse of time, such lapse of time shall be\nsufficient evidence of payment. Upon being satisfied that the matters\nalleged in the petition are true, the court may make an order that the\nmortgage be discharged of record.\n