#### *John H. Tucker*vs. *Benj. F. Hunt and others.*

Bond due February 11, 1830, secured by mortgage of real estate, was assigned by W. M. to the Bank, as collateral security to a note drawn by the obligor, and endorsed by W. M. In 1838, the Bank recovered separate judgments *on the note*against the drawer and endorser, and at the same time obtained from the law Court an order for foreclosure of the *mortgage*— there *being no judgment on the bond. W.*M., the* endorser, af-terwards satisfied the judgments on the note, and took back the bond and mortgage. In 1852, proceedings were instituted by the legatees of *W. M. for payment of the bond: *Held,*that the order of the law Court for foreclosure of the mortgage was sufficient to rebut the presumption of payment of the bond arising from the^apse of time.

*Before*Wardlaw, Ch., *at*Charleston, June, 1853.

The circuit decree is as follows :

Wardlaw, Ch. On February 11,1825, Benj. F. Hunt gave to Charles T. Brown five bonds, each in the penalty of $40,000, *184and conditioned for the payment of $20,000, with interest from the date, payable respectively, on February 11,1826 ; February 11, 1827; February 11, 1828; February 11, 1829, and February 11, 1830 ; and to secure the payment, mortgaged to Brown, the Richfield_ plantation, and one hundred and sixteen slaves. The bond due in 1826, seems to have been paid by the obligor to the obligee. The remaining four were deposited by Brown, in the Branch Bank of the United States at Charleston, about June 14, 1826, as collateral security for a note made by him to the Bank, for $18,500, and endorsed by William S. Smith ; and on the day mentioned, B. F. Hunt signed a certificate that he had made no payments on the .bonds, except such as were endorsed thereon, and agreed that future payments should be made, after due notice to the Directors of the Bank. On June 21, 1828, Brown wrote a letter to Hunt, in which he proposed to release a large portion of his debt, if the latter would make arrangements to pay promptly some of Brown’s debts which were pressing. This led to a negotiation between the parties, which resulted in an agreement, according to my view of the evidence, that the plaintiff, Tucker, should be substituted to the rights and interests of Brown in the bond due in 1827, to the extent $14,548,45, the balance of this bond being extinguished by payment or other arrangements not explained ; and that the sum due on the three remaining bonds, $69,748, should be extinguished by the payment of $49,748, upon certain debts of Brown, namely: $18,500 to the U. S. Bank; $7,500 to the Bank of the State ; $5,600 to the State Bank; and $18,148 to Mr. Ball. In pursuance of this agreement, B. F. Hunt, in October, 1828,- received, “ as agent of Mr. Brown, until the negotiation is concluded,” his bonds from the bank of the U. S., delivered three of them to W. S. Smith, October 8, 1828, to procure blank assignments from Brown, and afterwards received them again from S.mith. Brown assigned to William Aiken, without recourse to himself, the two bonds payable in 1828 and 1829, and so much of the mortgage as might be necessary to secure the payment of the two bonds; and also assigned to *185William Matthews, without recourse to himself, the bond payable in 1830, and so much of the mortgage as might be necessary to secure the payment of this bond. The assignment of the bonds to Aiken bears date October 6, 1828, and the assignment of the bond to Matthews, bears date October 9, 1828 ; the assignments of the mortgage being undated. This assignment of bond and mortgage to Matthews, proceeded from an arrangement, by which the note of Hunt, endorsed by Matthews, to the United States Bank, for $18,500, was given in substitution and payment of the note of Brown, endorsed by Smith, and was intended as collateral security to Matthews for this endorsement, and for the endorsement by Matthews, of another note made by Hunt for $9,900, which latter was further secured by a separate mortgage on different estates in St. James, Santee. Matthews deposited the bond in the Bank, and assigned the mortgage to the Bank without date, as collateral security for the payment of the note of $18,500. On April 21,1836, the two notes of Hunt endorsed by Matthews, previously kept up by partial payment and renewals, were protested for non-payment; and on June 10, 1837, the Bánk of Charleston, which had succeeded to the assets of the Branch Bank of the U. S., obtained separate judgments upon these notes against Hunt and Matthews, and on November 23, 1838, lodged *fi. fas.*for $19,976,44. At the date of the judgments, the Bank of Charleston also obtained an order (of doubtful regularity) for the foreclosure of the mortgage on Richfield, and the plantation in St. James, Santee, which foreclosure, however, was never executed. In the years 1840 and 1841, Mr. Matthews, through his financial agent, B. P. Col-burn, paid off the judgment of the Bank of Charleston against him; the last payment on the debt being January 29, 1841, although a payment of $100 for sheriff’s commissions, was made July 9, 1841. At the time of making the last payment on the debt, Mr. Colburn obtained from the Bank, possession of the bond and mortgage assigned to Mr. Matthews, and having informed Mr. Matthews of the fact of his possession of. these instruments, retained possession of them until August 12, 1848, *186when he delivered them to Lawton, executor of Matthews. No payment on the bond itself appears to have been made after February 11,1826, to which date the interest was paid. From some time before 1840, until the death of Mr. Matthews, on July 22, 1848, there was no friendly intercourse between Col. Hunt and himself. Mr. Matthews, by his will, gave to the children living at the death of his daughter, Susan B. Hunt, wife of Col. Hunt, to be equally divided between them, all bonds, notes, judgments, mortgages, or other securities or evidences of debt, held by him against their father. On December 6, 1848, Law-ton, executor of Matthews, filed his bill in this Court for instruction, in the management of his testator’s estate, against Mrs-Hunt, her children, and others; and amongst other things, claimed that at testator’s death, a large sum of money was due and unpaid to testator by his son-in-law, B. F. Hunt, and prayed an account of said debt, and the judgment of the Court, whether the principal only, or the aggregate of principal and interest, or what portion thereof, should contribute to the payment of the debts and legacies of the testator. Mrs. Hunt, in her answer to this portion of the bill, after disclaiming interest in the matter, says, “ that there were many and bitter controversies between her husband and father, in which the parties differed so much as to cause an estrangement for many years. And, as in his will, her father has restored to her family property which her husband claimed, and with which he is fully satisfied, so that the controversy is ended, she denies the right of any stranger to re-open these controversies; and the bequest of all claims against their father to his children, she and all her family consider as a peace offering to her family; and she most solemnly eschews all foreign interference, as the claims were mutual, and not admitted, and nothing but a protracted controversy could ascertain *any balance,*and that would be a specific legacy, and liable only on failure of other assets, which are ample to satisfy all other demands.” The answer of the children of Mrs. Hunt says, *“*that they have read the answer of their mother, Susan B. Hunt, and that they approve and adopt the same so far as it *187extends; and that in relation to the bequest to them of all accounts and demands against their father, B. F. Hunt, they are cognizant of mutual claims between him and the testator, which for many years prior to his death, caused an estrangement and cessation of intercourse between them, &c. In the latter part of his life the testator became satisfied that their father had dealt fairly by him, and that his conduct had been such as ought to have maintained those friendly family acts of mutual kindness, which had so happily existed during many years after their domestic connections were formed, and so testator frequently admitted, and as they fully believed, with a view to prevent any person interfering, or in any way moving all or any of the matters between them, the testator gave all demands against their father to these respondents as a legacy, after so bestowing his estate as to cover all the disputed matter between him and his son-in-law; and as any balance, if due, would diminish the means of their father, whose estate in the course of nature, will devolve on these defendants, between whom and their parents no diversity of interest is felt, all participating from their youth in the common means of all, they, therefore, utterly deny any power in the executor to do more than assent to, or refuse the legacy, leaving it to be settled by the parties, and thus carrying out the will of the testator. These defendants as residuary legatees of the estate left for life to their mother, thus fully agree and unite in her views stated in her answer, &c.” Col. Hunt demurred to the bill, because no specific claim within the limited jurisdiction of a Court of Equity was made against him. The Court decreed on this point (4 Strob. Eq. 9) in the following terms : *“*It was stated at the hearing, that painful differences had existed at one time between the testator and Col. Hunt, in relation to their pecuniary transactions. I think that a careful analysis of the language of this clause, will warrant the inference that the testator did not speak of an ascertained debt, or interest bearing fund, as due by Col. Hunt, but that he referred to all the evidences of demands adjusted or unadjusted, which the testator held, or which might be found m his possession ; *188these he transferred to the children of his debtor for as much as they might be worth; It was thus rendered an account easy of adjustment; it was a peace offering which the Court would be solicitous to respect, and which any other construction might very easily convert into a firebrand of litigation and discord. To effect the purposes of the testator, the gift should take effect immediately and entirely.” Under this decree, the executor of Matthews delivered the bond, mortgage and other evidences of debt by Col. Hunt, to testator Matthews, to Master Laurens, and these papers have been recently found by Master Tupper, amongst the papers of his office, but not regularly transferred to him as successor of Master Laurens, and they are produced at the trial by Master Tupper. Col. Hunt, in the course of *Lawton*vs. *Hunt,*also received through the master payment of about $2,000 *for professional services rendered T>y him to Mr. Matthews in his life time.*The present bill, by Tucker against Hunt and others, was filed December 27, 1851, and the amendment thereof, directed by the decree of Chancellor Dar-gan, and bringing, for the first time, into litigation the validity of Hunt's bond assigned to Matthews, was filed July 31, 1852. This bill is taken *pro confesso*against Col. Hunt, but the children, the mother being now dead, answer, claiming the bond of their father, assigned to Matthews, and by him devised to them. In 1849, James B. Campbell became owner of the two bonds originally assigned to William Aiken, and after a correspondence between him and Col. Hunt, in which Col. Hunt asserted the subsistence of the bond assigned to Matthews, it was agreed by Col. Hunt and his children, except George, that the bonds assigned to Aiken and Tucker, should have some precedence over the bond assigned to Matthews ; but I must refer to the correspondence and agreement for the extent of the preference and further particulars. Under these circumstances, the question is submitted to me, whether the bond assigned to Matthews is a subsisting debt, and entitled to the security of the mortgage given by Hunt to Brown.

The presumption of payment of a bond, arising from the *189lapse of twenty years after its maturity, is not a presumption of law, absolutely irrebutable to be made by the Judge, but it affords evidence of the fact of payment, always conclusive in the absence of partial payment, or other rebutting circumstances, upon that portion of the tribunal which determines facts. In a Court of Equity, the Chancellor, in determining the facts, should give effect to the presumption, wherever a Law Judge ought to direct the jury to draw the conclusion of payment. In *Stover*vs. *Duren,*3 Strob. 450, it is said, this is one of those strong presumptions which shift the burden of proof, which from frequent occurrence, have become familiar to the courts, and which being constantly recommended to juries from motives of policy, have acquired an artificial force, and become as important as presumptions of law. “When, by the expiration of full twenty years, the presumption of payment has acquired an artificial force, so that it stands in place of belief, an admission that the payment has not in fact been made, cannot, of itself, destroy the effect which considerations of policy have given to a certain lapse of time, whether the payment has or has not been made.” In the present case, the presumption of satisfaction, from the lapse of twenty years, is much corroborated by the dealings between Brown and Col. Hunt, concerning the satisfaction of the bonds, by the careless treatment after-' wards of this bond as an instrument of debt, by the answer of the present claimants in *Lawton*vs. Hunt, amounting very nearly to a disclaimer of all interest and right in the bond, and by their permitting in that suit certain claims of the obligor to be paid without interposing any set-off on account of this bond. In *Blake*vs. *Quash,*3 McC. 340, the Court approves a remark cited from 1 Selw. N. P. 589, in substance, that where the lapse of time has been less than twenty years, the fact of the obligee’s having settled an account of the obligors, in the meantime, without bringing forward his bond, may be sufficient evidence of satisfaction of a bond. See also Best on Presumptions 42, L88; *Buchan*vs. *James,*Spear’s Eq. *379-. 'Foster*vs. *Hunter,*-4 Rich. Eq. 20 ; *McQueen*vs. *Fletcher,*4 Rich. Eq. 161. *190The circumstances relied upon in this case, as rebutting the presumption of payment from lapse of time, seem to me insufficient for the purpose. The recent acknowledgments by Ool. Hunt, of the subsistence of the debt, have very little weight, when we consider that the rights of other claimants of the subject mortgaged have intervened, and that these acknowledgments are in practical subservience of his own interests through the interests of his children. The judgment of foreclosure in 1837, was not between the obligor and the obligee, and it has been satisfied by Matthew’s payment of the debt. *Noonan*vs. *Gray,*1 Bail. 437. The possession by the assignee of the obligee, of the bond uncancelled, deserves less consideration than is usually given to the fact, when we regard the relations of the parties, and the indifference shown to the instrument of debt. It is adjudged and decreed, that the bond of B. F. Hunt to C. T. Brown, assigned to William Matthews, and by him bequeathed to the children of Mrs. Hunt, is satisfied and extinguished.

The defendants, William M. Hunt, Benjamin F. Hunt, jr., George B. Hunt, and William Mootry, and Jane B., his wife, appealed on the following grounds :

*First.*— Because, upon the statement of the facts of the case made by his Honor, it is manifest that no presumption of payment and satisfaction of the bond of B. F. Hunt, assigned to William Matthews, and by him devised to the defendants, the children of Mrs. S. B. Hunt, deceased, can arise, as it thereby fully appears;

1. That the assignment of this bond was made to W. Matthews as an indemnity against his endorsement of B. F. Hunt’s note for $18,500, discounted by the U. S. Bank — which note was regularly renewed, and the renewals constantly held by the said Bank until transferred to the Bank of Charleston, by which last named Bank, the said debt was constantly kept current by regular renewals until 1836, when the last renewal was protested, put in suit, and judgment recovered, both against the drawer and endorser in 1837, and finally paid by W. Matthews, *191the endorser in 1840 and 1841, at which time, and not before, the endorser could look to this bond for his indemnity;

2. That W. Matthews, the endorser, did claim and receive of the Bank of Charleston upon his final payment of his endorsement in 1841, the said bond, and held it as his indemnity until his death ;

3. That the bond could not be presumed to be satisfied while the Banks held it as a collateral security for the obligor’s note, endorsed by W. Matthews, which was regularly renewed, and their delivery of the said bond to the endorser upon his paying up the note in full, was no satisfaction thereof, but in fact was conclusive evidence that he was to hold it for his indemnity against this payment; and not more than seven years elapsed from the time W. Matthews was thus re-possessed of the said bond, until his death in 1848 — a period far too short to raise the presumption of payment, especially when the relationship existing between the obligor and Mr. Matthews is considered.

*Second.*— Because the answers of the defendants in the case of *Lawton*vs. Hunt, is no evidence of satisfaction, because they only assert the existence of unadjusted mutual claims between the testator, W. Matthews, and Col. Hunt, and nowhere admit the payment of this bond; and all such deductions from the vague terms of these answers, would be manifestly erroneous, when it is considered that the children of the obligor only insisted that they alone should have the right to adjust and settle the mutual claims with their father, who was their Solicitor and adviser in the cause, and drew up the answers for them.

*Third.*— Because the payment of $2,000 to Col. Hunt for professional services rendered to Mr. Matthews in his life-time made by the Master in the case of *Lawton*vs. Hunt, (if it be not a mistake of his Honor, the Chancellor, as is here respectfully suggested,) would not aid the presumption of payment when the relationship of Col. Hunt to these appellants, and the fact that'he was the Solicitor of themselves and of their mother in the said cause, are considered, if it were all charged to them, but as it was charged to and paid out of the whole of the testa*192tor’s estate, these appellants could not have' been interested to object to such payment.

*Fourth.*— Because there is no evidence that either the complainant, Tucker, or the assignee of the other bonds, William Aiken, were ever informed, or had any reason to believe, that the bond held by Mr. Matthews had been paid ; and at the time of the assignment of Mr. Aiken’s bonds to Mr. Campbell, Mr. Campbell recognized the bond held by the appellants, and insisted upon a waiver of the lien in his favor, which was given by all of them except George B. Hunt, (who did not waive,) and the complainant has claimed the benefit of this waiver.

*Fifth.*— Because third parties cannot insist upon the presumption of payment, from lapse of time, in a cause where the obli-gor is party, and makes no such defencé, unless a direct charge and full proof be made of collusion between the obligor and the holders of the bond, and then the Court should go no further than to disallow the claim of the holders, so far only as to secure the interests of such third parties; but in this case no charge of fraudulent collusion between the obligor and the holders of the bond has been made, and no evidence thereof produced.

*Sixth.*— Because it is respectfully submitted that his Honor erred in his conclusion that the judgment of the Bank of Charleston against B. F. Hunt, was satisfied by the payment of the judgment against W. Matthews, the endorser' — first, by overlooking the important fact in evidence before him on the trial, in writing, that Mr. Matthews had stipulated for the assignment of the judgment against Col. Hunt, before he paid the debt, which was considered by the Solicitors and Attorneys of theBank, and a memorandum thereof made in writing; and next, because he followed the rule at law when he should have conformed to the rule in equity, viz : That the surety paying the debt of his principal, has a right to require the assignment of all the securities held by the creditor — which rule is fully recognized in the case of *Thomson*vs. Palmer, 3 Rich. Eq. 146.

*Seventh.*— Because, if the payment of the judgment of the Bank of Caarleston against Mr. Matthews, satisfied the judg*193ment against Col. Hunt, then it is clear Mr. Matthews became entitled to claim payment and indemnity from Col. Hunt at that time, and was then at liberty to resort to the bond to secure that indemnity, and to call upon the Bank to re-deliver the same to him, which he did at that time — after which, no lapse of time has occurred to warrant presumption of payment.

McCrady, *Campbell,*for appellants.

*James Simons,*for plaintiff.

The opinion of the Court was delivered by

Dargan, Ch.

This Court does not differ from the Chancellor who tried the cause, in his exposition of the principles which have a bearing on the question involved in this appeal. These he has correctly and lucidly explained. But in his application of these principles to the facts of the case, this Court is of the opinion that an error has been committed.

The bare lapse of twenty years from the time a bond or other specialty becomes payable, without acknowledgment of the continuance of the obligation, partial payment, or other rebutting circumstance, raises a presumption of payment, which operates as fully in discharge of the debt, as proof of actual payment and satisfaction. It is a presumption of fact, which unrepelled, is as obligatory upon the Court, as a presumption of law. It stands in the place of belief, and its force cannot be superseded, but by the proof of facts tantamount to a distinct admission of the existence of the debt within the twenty years. A period less than twenty years, aided by strong corroborative circumstances, has been considered sufficient to raise the presumption of payment. The authorities cited by the Chancellor in his circuit decree, most abundantly sustain these general propositions. A citation of similar authorities might be greatly extended. Indeed, these principles of law are too clearly and definitely settled to admit of doubt or controversy at the present day.

The bond of Benjamin F. Hunt to Charles T. Brown was *194due, and payable more than twenty years *ante litem motam.*And the question which- remainst to be considered, is a question of fact; namely, whether the obligor has distinctly admitted the continued existence of his obligation within the period of twenty years before the present owners of the bond have presented their claim to payment in this suit. To illustrate the judgment of the Court upon this question, it will be necessary for me to give a brief history of such portion of the facts of the case, elicited upon the trial, as bear upon this issue.

In the year 1825, Benjamin F. Hunt purchased from Charles T. Brown and wife, a plantation called Richfield, in Georgetown District, and one hundred and sixteen negroes, together with the stock on said plantation. The consideration was $120,000. Of this sum, $20,000 was paid in cash, or equivalents. To secure the payment of the remaining $100,000, Hunt executed to Charles T. Brown five bonds; each in the penal sum of $40,000 ; and each conditioned for the payment of $20,000, with interest payable annually, from the date of the bonds. The date of the bonds is the 11 February, A. D. 1825. To secure the payment of these bonds, with the accruing interest, Hunt executed to Brown, a mortgage of the Richfield plantation and the negroes purchased with it. The mortgage bore the same date with the bonds, and was duly registered. On one of these bonds; namely, that due the 11 February, 1826, is admitted to have been paid by Hunt, in some way not explained.

Charles T. Brown was indebted to the Branch Bank of the United States, in Charleston, in the sum of $18,500, by his note, on which William Smith was endorser. About the 14th June, 1826, Brown deposited with the Bank the four outstanding bonds of Hunt, as collateral security upon his debt to that institution. While the bonds were thus in the possession of the Bank, Brown being pressed by his creditors, entered into an arrangement with Hunt, for the prompt payment of his debt, in consideration of which prompt payment, Hunt was to have 20 per cent, discount. In pursuance of this agreement, Hunt as*195sumed a debt of Brown to John H. Tucker, (the plaintiff,) amounting to $14,598 45 cents, for which he gave to Tucker five bonds, payable at different periods. This sum was applied to the bond payable the 11 February, 1827, and together with other payments and discounts, was in full satisfaction of said bond. The litigation arising upon this transaction, was the subject of a former decree of this Court.

In further fulfilment of the arrangement for prompt payment, Hunt was to pay, or to assume upon himself in discharge of Brown, the debt of the latter to the United States Bank of $ 18,500, secured by the indorsement of Wm. Smith, as before stated. To effect this part of the arrangement, Hunt gave his own note to the Bank, for the whole amount of Brown’s indebtedness, with the late William Matthews as his indorser; and thus Brown was discharged from that liability. While the bonds were still on deposit with the Bank, Brown, on the 6 October, 1828, assigned two of them to William Aiken; namely, the bond due on the 11 February, 1828, and the one due on the 11 February, 1829, for the consideration (as it is said) of $36,000. He also assigned to Aiken, at the same time, so much of the mortgage as was necessary to secure the payment of the said two bonds. On the 9 October, 1828, Brown assigned the remaining bond due 13rFebruary, 1830, and so much of the mortgage as was necessary to secure the payment thereof, to William Matthews, as collateral security for his indorsement of Hunt’s note to the Bank given in substitution of Brown’s debt, and also for his indorsement of another note of Hunt’s in Bank for $9,900 ; which latter note was further secured by the mortgage of other estates in Saint James, Santee. Whether the assignments to Aiken and Matthews are to be regarded as assignments in fact, or a re-issue by Hunt, of his bonds, I do not mean to insinuate an opinion. I am only discussing the question whether the bond assigned to Matthews is subject to the presumption of payment from the lapse of time. I state now only such of the facts as in my judgment are explanatoryfof, or pertinent to that issue.

*196Matthews having become the assignee of the bond last due, made an assignment thereof without date to the Bank as collateral security on the note of $18,500. On 21 April, 1836, the two notes of Hunt endorsed by Matthews, previously kept in Bank by partial payments, and renewals, were protested for non-payment. And on the 10 June, 1837, the Bank of Charleston, which had succeeded to the assets of the Branch Bank of the United States, obtained separate judgments upon these notes against Hunt and Matthews, for the sum of $19,976 44 cents; and on the. 23 of November, 1837, lodged writs of *fieri facias*to enforce payment of the same.

The foregoing history is preliminary to the statement of a fact of great importance. It is a fact, which has a direct bearing upon the only issue which the Court is now considering, and deciding; and upon which it will turn. That issue, it. will be remembered, is whether the debt secured by the bond assigned to Matthews, is subject to the presumption of payment arising from the lapse of twenty years after it was due; or whether there be any rebutting circumstance to repel that presumption, which must otherwise necessarily arise.

The Act of Assembly of 1781,(a) gives to the Law Court jurisdiction to foreclose mortgages in certain cases where judgments have been recovered in that Court, upon debts secured by mortgage. The conditions upon which this jurisdiction is to be exercised by Law Courts, are, that the mortgagor must be still in possession, and that there are antecedent judgments, (one or more,) against the mortgagor, prior in date to that upon which proceedings in foreclosure are to be had, and posterior to the date of the mortgage.

The Bank of Charleston having obtained judgment against B. F. Hunt for $19,974 46, on his note endorsed by Matthews, as aforesaid, proceeded under the provisions of this Act, to foreclose the mortgage of Hunt given to secure the payment of the bond to Brown, which had been assigned to Matthews, and *197by him assigned to the Bank, as collateral security upon the •note. In these proceedings, Hunt was duly notified according to the provisions of the Act, of the intended foreclosure ; and made default. Whereupon the Bank of Charleston, the plaintiffs in the cause, did actually obtain, in the year 1838, from the Law Court, an order for the foreclosure of the mortgage of the plantation called Richfield, and the negroes thereon subject to the mortgage. The order of foreclosure was never executed.

It has been objected, that this order for foreclosure at law was irregular and void. It *was*objectionable in onepointof view. The mortgage was not given to secure the payment of the debt upon which the judgment was recovered, but was given to secure the payment of the bond, which, together with the mortgage, was lodged and assigned .as collateral security to the note. The mortgagor did not covenant, that his lands and negroes should be subject to a *lien*for- the payment of the note, but for the amount due upon the bond. I think, that Hunt, upon this ground, might have made a successful defence against the proceedings for foreclosure. He might have said, *“in hecfasdera non*veni.” I have never agreed, that my lands and negroes should be subject to a *lien,*to secure the.payment of a debt upon which this judgment has been rendered. But he did net do this. He was duly notified, but made no defence. He suffered the order for foreclosure to go against him by default. Whether after this, the order for foreclosure was not valid and binding to all intents and purposes, is an entirely different question from that, which might-have been raised, but was not raised, during the progress of the proceedings.

I am of the opinion, that this judgment of foreclosure having been rendered, and standing unreversed, became valid and binding upon the mortgagor. In support of this view, it may be remarked, that the Court of Law had jurisdiction upon the subject matter; all the conditions existed upon which that jurisdiction was to be exercised; the proceedings were regular as to form ; the mortgagor was duly notified; and the Court rendered a formal judgment of foreclosure. And if the Court committed *198an error as to a matter of fact, which might have caused a reversal of its judgment on appeal, it would constitute no ground afterwards for its being vacated, or for its being considered void and of none effect.

Here, then, was the judgment of a Court of competent jurisdiction for the foreclosure of the mortgage, in a proceeding in which Hunt was a party, and had regular notice. This occurred in the latter part of the year 1838, and may be considered a distinct and unequivocal admission by Hunt at that time of the existence of the debt; or at least of so much thereof as was equal to the sum recovered by the Bank in that cause. How would he have acted in these proceedings, if the debt secured by the mortgage had there been paid? How would any man have acted under similar circumstances ?

These proceedings at Law for the foreclosure of the mortgage, amount to more than an admission by Hunt, that the debt then existed. It is a solemn judgment of the Court to that effect, and conclusive upon him. He could not afterwards bring into issue a question of fact so formally adjudged. From this period, (Nov. 1838,) to the time when the legatees set up in these proceedings, their claim upon this bond and mortgage, not more than fourteen years have elapsed. It follows, as a matter of course, from what has already been said, and such is the opinion and judgment of this Court, that no presumption of the payment of the bond which has been assigned to William Matthews, can arise from the mere lapse of time, or from the lapse of time aided by other circumstances. The circuit decree which decides this question differently, must be reversed. No other question that arises in the case, but this, is intended to be concluded by this decree.

Whether this bond maynot have been satisfied by actual payments ; whether any, or how much of the bond remains due, -are questions which we do not meando decide, and upon which we express no opinion. The question as to actual payments, or set-offs by Hunt against Matthews, the Chancellor on circuit did not consider. Those matters in the present stage of the *199proceedings, are not proper to be considered here. The facts are not before us. They must first be brought before, and considered by, a Court of original jurisdiction, with the aid of such instrumentalities as that Court affords.

In the mean time, the sale heretofore ordered, is not intended to be arrested, or delayed, but may go on according to the previous orders of the Court.

It is ordered and decreed, that the decree of the Circuit Court be reversed: and this decree upon the question herein decided, become' the judgment of the Court.

It is further ordered and decreed, that the case be remanded to the Circuit Court, to be there again tried upon all issues of law and fact which properly arise in the proceedings, except such as are herein decided.

Johnston and Dunkin, CC., concurred.

*Decree reversed.*

(a)

5 Stat. 169.