#### James A. Locke et al. v. Mary R. Caldwell.

1. Limitation—when a bar to equity of redemption. It is a well-settled general rule that twenty years’ possession by the mortgagee,' without account or acknowledgment of any subsisting mortgage, is a bar to the equity of redemption, unless the mortgagor can bring himself within the proviso in the Statute of Limitations.

2. Same—when mortgage is barred. . It is the general rule that if the mortgagor, after forfeiture, has been permitted to retain possession for twenty years, the mortgage will be presumed to have been discharged, unless circumstances can be shown sufficiently strong to repel the presumption, as, payment of interest, a promise to pay, an acknowledgment by the mortgagor, and the like.

3. Same—to bar right of redemption from mortgage. An actual and not a constructive possession by the mortgagee for the period of twenty years is necessary to bar the right to redeem from the mortgage. In general, the respective rights of mortgagee and mortgagor, with regard to foreclosure on the one hand and redemption on the other, are treated as mutual and reciprocal, so that when the one is barred so is the other. A mortgagor or his assignee Was allowed to redeem from the mortgage thirty-five years after condition broken, where the land remained wild and vacant until a year before bill filed, and, the right to redeem existing, it was also held that the right to foreclose the mortgage was not barred.

4. Same—action on note, when defendant is out of State. Under the statute, except in the case of real or possessory actions, when the defendant shall be out of the State any time during which a suit may be brought, the action may be brought on his return to the State, and the time of his absence from the State shall not be taken as part of the time limited.

5. Payment—presumption, from lapse of time. There can be no presumption of payment of a mortgage debt from lapse of time, so long as the time of limitation provided by statute for the case has not run against the debt.

6. Equity—stale claims—in equity. A mortgagee will not be barred in equity on the ground of staleness, even after the lapse of thirty-five years, when the mortgagor is out of the State most of that time, and has apparently abandoned his equity of redemption, and the mortgagee has constantly asserted his claim by the sale of a part of the mortgaged premises, and paying the taxes every year on the remainder, and no adverse claim has been asserted.

- Appeal from the Circuit Court of Greene county; the Hon. .Cyrus Epler, Judge, presiding.

*418Messrs. Warren & Pogue, for the appellants.

Mr. Henry C. Withers, for the appellee.

Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, filed in the circuit court of Greene county on January 4, 1875, to foreclose a mortgage given by David Loclce to John Caldwell on the 13th day of April, 1839, and duly recorded on the same day, on the east half of the south-east quarter of section 22, and the Avest half of the south-west quarter of section 23, in toAvnship 10 north of range 13 Avest of the third principal meridian, in the county of Greene, in this State, also, lot 198 in Carrollton, in said county, to secure the payment of a promissory note of even date Avith the mortgage, made by Locke to Caldwell for $300, payable in tAvelve months, with interest at the rate of tAvelve per cent per annum. A decree of foreclosure Avas granted, and the defendants appealed.

The defence set up Avas, the bar of the Statute of Limitations, and the staleness of the claim.

The following facts appear: The town lot was vacant and unimproved, and the land was wild, unimproved timber land, and the latter so continued until in April, 1874, Avhen a son of the mortgagee, claiming under him by will, put up a building on one of the tracts. A short time after the giving of the mortgage, David Locke, the mortgagor, departed from the State of Illinois, and has not been within the jurisdiction of the State since, going to the State of Missouri and residing there. Since the year 1845, Caldwell, the mortgagee, and those claiming under him, regularly paid the taxes on the land. In the year 1850, John Wright, having purchased a tax sale certificate to the toAvn lot, purchased the lot from John CaldAvell, paying him therefor $50, and received a deed of it from Caldxvell, and has been in possession of it ever since, shortly aftenvard putting up a house on it, and he has improved it other Avise, and paid the taxes on the lot. In the *419neighborhood the land was called Caldwell’s land. On March 21, 1874, James A. Locke, the son of David Locke, purchased the two timber tracts from David Locke for $1000, receiving a quitclaim deed therefor. Franklin Caldwell, a son of the mortgagee, and one of the devisees of all his real estate, put up a cabin on the laud on the 7th of April, 1874, and occupied it, by a tenant, until in November, thereafter. On August 13, 1874, George Darr and John H. Snyder purchased the two timber tracts from James A. Locke for $2000, the latter giving to them a warranty deed, and they immediately afterward went into possession. • On the 19th day of May, 1874, David Locke executed to James A. Locke a quitclaim deed for lot 198,—the town lot. John Caldwell died, and the complainant is his widow, and executrix of his will, and one of his devisees.

As respects the town lot, there can be no question that the title is complete in Wright, under the mortgage. He has been in the actual possession of the lot, claiming an estate in fee, under the mortgage, for more than twenty-five years.

It is the well-settled general rule that twenty years’ possession by the mortgagee, without account or acknowledgment of any subsisting mortgage, is a bar to the equity of redemption, unless the mortgagor can bring himself within the proviso in the Statute of Limitations. Demarest v. Wynkoop, 3 Johns. Ch. 129, and other cases.

The equity of redemption being barred as to the town lot, makes the mortgage title to it complete.

In Harris v. Mills, 28 Ill. 44, this court held, that where the note, for the security of which a mortgage was given, was barred by the Statute of Limitations, the right to foreclose the mortgage was also barred.

The statutory limitation in this ease of an-action upon the note Avhich the mortgage secured Avas sixteen years, under the statute in force at the time the note Avas given, and ten years under the present statute, in force' at the time this suit Avas commenced. But each of the statutes provides, that if the *420person .against whom was a cause of action, except real or possessory.actions, should be out of the State any time during which a suit might be sustained on the cause .of action,, suit might be brought' after his return to the State, and the time of such absence should not be taken as part of the time limited. There was no bar, then, here, of an action - upon the mortgage debt, the period of the mortgagor’s continued absence from the State preventing it.

The general rule, which has been stated, as to twenty years’ possession by the mortgagee barring.the equity ••of redemption, is reciprocal, and the mortgagee may be equally barred by lapse of time, the general rule being, that where the mortgagor, after forfeiture, has been permitted to retain possession for twenty year’s, the mortgage will be presumed to have been discharged, unless circumstances can be shown sufficiently strong to repel the. presumption, as, payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing, and the like. Hughes v. Edwards, 9 Wheat. 648; 4 Kent’s Com. (11th ed.) 216.

• It is sometimes otherwise expressed that a mortgage is not evidence of a subsisting title, if the mortgagee never entered,- and- there has been no interest paid or demanded for twenty years; that these facts authorize and require the presumption of payment. Giles v. Baremore, 5 Johns. Ch. 545. But this, as we understand, presupposed that the mortgagor was in possession, and in the actual possession. In Moore v. Cable, 1 Johns. Ch. 386-7, Chancellor Kent, in declaring the rule" that twenty years’ possession by the mortgagee .was the period adopted by the courts of equity as sufficient to bar the right of redemption, remarks: “ JSTor will a mere constructive possession, for twenty years, be sufficient. . The courts require an actual possession by the mortgagee during the period that is' to form the equitable bar; for as they adopt the rule by analogy to. the Statute of Limitations, it requires the samé actual and continued possession "to form a bar in equity that is requisite to form a bar at law. - The idea suggested by- the counsel *421for the defendant, that as the mortgaged'premises were, proba-5 bly, Avild, uncleared lands, possession is to be deemed to haves followed the right, and to have been in "the mortgagee after default of payment, is not applicable to this case. That fictioii Avas adopted by the courts to preserve the lands of the true owner; while in their' uncultivated state, from intrusion and trespass; and it would be a perversion of the rule to make it operate by Avay of the extinguishment of a right. Nothing short of actual possession for twenty years, will, at law, toll the.entry of the true otvner; and the'equity of redemption, which, in this court, is the same as the fee at law, ought to be equally protected.” In Bollinger v. Choteau, 20 Mo. 89, this sanie doctrine was applied, and a bill to redeem sustained after the lapse of thirty-six years from- the execution of the mortgage, actual possession • on the part of the mortgagee not having been taken until within twenty years before the commencement of the proceeding to redeem.

In general, the respective rights of mortgagee and mortgagor, with regard, to foreclosure on the one hand, and redemption on the other, 'áre treated as mutual, that is, the existence of the former is held to involve that of the latter, and vice versa; and the fact that "the one can hot legally be enforced under the circumstances, is regarded as sufficient to preclude a claim for the other. It is said, “the right to foreclose and the right to redeem are reciprocal and commensurable.” 2 Hilliard on Mort. § 2.

The land.. h,ere being.wild,.unimproved timber land, and there having been no actual possession by either mortgagee or mortgagor, until Avithin less than one year before the commencement of the suit, theré Avould, under the authorities cited, be no bar, from the lapse of time, of the right to redeem, and the rights being reciprocal, it follows that there is no bar, of the right of foreclosure.

There could not well be any presumption from the lapse of time of the payment of the mortgage debt, under the cir*422cumstances, so long as the time of limitation provided by statute for the case had not run against the debt.

Nor do we think the defence should prevail under the doctrine laid down in 2 Story’s Eq. Jur. § 1520, that “a defence peculiar to courts of equity is that founded upon mere lapse of time, and the staleness of the claim, in cases where no statute of limitations directly governs the case. . In such cases, courts of equity act sometimes by analogy to the law, and sometimes act upon their inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to interfere where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse-rights.” As accounting for not sooner foreclosing, was the removal of the mortgagor from the State, and, so far as appearances showed, the entire abandonment by him of the equity of redemption. There was constant assertion of claim under the mortgage by disposal by sale of a portion of the mortgaged premises, and paying the taxes every year on the remainder. There was no acquiescence in the assertion of adverse rights, for none such were asserted until just before the commencement of the suit.

The decree of foreclosure will be affirmed.

Decree affirmed.