■ The opinion of the Court was delivered by

To two points in these cases has the attention of the Court of Errors been directed. The first is to the computation of interest; and the second, whether the lien of the mortgage has been released or removed by lapse of time?

1. We think the mode of computing interest was properly settled in O’Neall, guardian, vs. Bookman, 9 Rich. 90; and as equity follows the law, it can be hardly necessary to say anything more on this point. Indeed the full opinion of my brother Withers, in that case, on a contract like this, for the payment of interest annually, ought to supersede comment. But as this matter has been discussed in the Court of Errors, and as there still is variety of opinion among some of the members, it may be well enough to say that a majority are entirely satisfied with the decision in the case above alluded to.

The contract to pay interest annually is the same thing as if the party at the end of each year promised as much money as would be equal to the interest, which might then be due. In such a contract, there can be no doubt, interest must be computed on the sums thus annually set down as due. Although this may compound the interest, which is not a direct legal consequence of either the loan or forbearance of money; yet I think parties may make just such a contract without its being obnqxious to the charge of usury. For it is at last no more than taking seven per cent, interest on money forborne. For the interest on such a contract due at the end of the year is really so much forborne for another year. I agree entirely with what was said by one of the Chancellors — that too much *595interest is charged and exacted in the accounts of trustees in equity. But it is to be remembered that they make no such contract as that before the Court. They are simply custodians of the funds in their hands, which they often keep for months and years before they can invest. Still they must pay interest, and sometimes in that Court accounts are made up with annual or semi-annual rests. If that be right and free from usury, how can it be said that a decision directing interest on interest to be annually computed on a contract stipulating for the payment of interest annually, is usurious. But I forbear; the point has been decided, and so it must remain.

3. It has been decided by the Court of Appeals in Equity, in this case, that the defendant could not rest on the statute of limitations. That decision is not now brought before the Court of Errors, but it can do no harm to say that I think it was decided right. For neither the defendant Eaves, nor any one of those under whom he claims, had ten years adverse possession of the premises. The several possessions cannot be linked togetheras was decided in King vs. Smith, 10 Rice. If Eaves had, fortunately for him, been in possession for ten years, after the case of Mitchell vs. Bogan, decided December Term, 1857, (and which ought to have been in the 1st No. of 11th Richardson,) I should not have hesitated at law, to have given him the benefit of the statute of limitations. For that case declares that the mortgagee, as against third persons, stands as at common law, and may maintain trespass to try titles. It may be in equity, that as the mortgage is on record, he may be charged, as a trustee, and thus prevented from relying on the bar of the statute. But that is not necessary to be now decided. The question is, does a presumption from lapse of time in this case arise that the lien of the mortgage has been released or removed ? There is no doubt that the debt, to secure which the mortgage was given, remains. For the presumption is rebutted by payments and the .judgment at'law. As a general rule, the security (the mortgage) ought to be regarded as co-existent with the debt. If there were *596any facts which would go to show a separation, I would readily admit the force of a presumption that the lien of the mortgage was released, but that is not the case here ; for when the debt was assigned to the complainant, Wright, the mortgage was delivered to him, as accompanying the debt. If the original mortgagor was before the Court, could he pretend that the mortgage was released when the debt subsisted ? I do not perceive how he could legally rest on any such presumption from lapse of time. The defendant Eaves, claiming under him, can be in no better situation.

The answer of the defendant under the decree of December, 1852, makes a statement which shews that there can be no such a thing as a presumption from lapse of time that the mortgage lien has been released. For he tells us that in 1837, August, not more than fifteen years before the bill was filed, in a report in a case between J. B. Kennedy et at., heirs at law of the mortgagor, Robert Kennedy, vs. William Woods, administrator, et al., this very debt, to secure which the mortgage was executed, was set down as subsisting, and provision was made for its payment. But still it is clear it was not paid. It must be recollected that this was within eleven years of the creation of the debt and execution of the mortgage. There could be no presumption of either payment or release then. If nothing afterwards had been done, then, indeed, the presumption would have attached. But at Fall Term, 1841, still within less than twenty years from the creation of the debt, judgment was recovered at law on the bond, and payments were made on the judgment in ’42, ’43, ’44, to the amount of $1,470; not by the administrator of the obligor, but by Robinson, who had purchased the mortgaged premises, but had not taken titles, the purchase money being paid by John Kennedy, who took the titles, and under whom the defendant claims; this was clearly an admission of the subsistence of the legal lien of the mortgage to within six years of the defendant’s entry, and that would seem to be an end to the supposed presumption. The defendant’s cross *597bill, too, shews that he does not rely so much on the supposed presumption of release as he does that the party complainant, without resorting to him, might recover his debt from the sureties of the administrators of Kennedy; and in this position, which admits the existence of the debt and of the mortgage too, I think he virtually admits everything necessary to establish the complainant’s rights.

I do not understand a presumption from the lapse of twenty years to be irrebuttible; but that it is evidence that all things have been done according to the usual conclusion from such long silence and acquiesence, until a contrary belief is created by facts inconsistent with it. Stover & Barnes vs. Duren, 3 Strob. 448; McQueen vs. Fletcher, 4 Rich. Eq. 160-1—2. I am satisfied that the facts of payments both before and after the recovery at law, the judgment at law, the delivery of the mortgage to the complainant, and the statements and defences of the defendant in his answer and cross bill, are utterly opposed to the presumption of release or removal of the lien of the mortgage.

With the judgments which we have expressed on the two points considered, the case is remanded to the Court of Appeals in Equity, to make such order as may conform thereto, and give effect to the complainant’s rights.

dissentiente. The defendant, and those under whom he holds, have been in the actual, exclusive possession of the premises, claiming it as their own, for more than twenty years consecutively, prior to the institution of these proceedings. In Riddlehoover vs. Kinard, 1 Hill, Ch. 376, itis stated that after twenty years’ possession, the Court will presume a grant from the State, payment of a legacy, ouster of a tenant in common, satisfaction of a mortgage, or almost anything which is necessary to secure the possession and quiet the title. In Watkins vs. Willison, 3 Peters, 43, the doctrine was held to apply as between the original mortgagor and mortgagee. In order to give effect to this presumption, it was ruled in Rogers vs. McLeod, 2 Rich. 22, and repeated in Thomas vs. Peake, 7 Rich. 355, that the possession of the several successive alienees may be tacked. The language in the latter case is: “The fact of possession for more than twenty years in the various persons successively occupying the land, though not for that time in any one, is enough to raise the presumtion of a grant.”

So that to entitle him to the benefit of this presumption, the defendant is regarded as having become the purchaser in 1831, and having held possession from that time. After twenty years the presumption is absolute and requires no circumstances to support it. After that time the onus of proof is on those who seek to repel the presumption. As'between the morgagor and mortgagee, as between debtor and creditor, an acknowledgment of the debt, as it will repel the presumption of payment, will preserve the lien of the mortgage. But as between the mortgagee and the alienee of the mortgagor, no debt exists. If the mortgaged premises prove insufficient, no one pretends that the alienee of the mortgagor is liable for the deficiency. The mortgagee had a lien upon the premises and nothing more. After twenty years possession by the alienee, this lien is presumed to be satisfied, although the debt may still be a subsisting demand, as between the debtor and creditor, mortgagor and mortgagee. This may be illus*599trated by a transaction of very common occurrence. A bank, or any other creditor, holds a mortgage of ten lots in the city of Charleston to secure payment of a debt. The debtor, desirous of selling one of the lots, in order to perfect a title, procured a release from the bank of the lien on this lot, either in consideration of receiving the purchase money, or because the bank is satisfied with the security of the remaining nine lots, which are still subject to the mortgage. As between the bank and the debtor the debt subsists, but the lien of the mortgage on the tenth lot is released and gone. Now, after an uninterrupted possession of twenty years by the purchaser of the tenth lot, the law presumes this release on the part of the bank, although no proof of an actual release can be produced; nay, although the Court may believe that no such release was, in fact, executed. If the defendant, in 1831, had executed a mortgage of his own land to Pamela Gunning to secure the bond of Robt. Kennedy, and no proceeding were had for more than twenty years, a release of the lien would be presumed, although as between the creditor and the principal the debt may be preserved by recent acknowledgments. (Even if the defendant had become surety on the bond, after a lapse of twfenty years, and no acknowledgment on his part, he is entitled to the benefit of the presumption, notwithstanding intervening acknowledgments on the part of his principal.) Some of the decisions arising out of the peculiar provisions of the Act of 1791, have been the subject of criticism, as will be seen from the judgment of Chancellor Harper in Thayer vs. Davidson, Bail. Eq. 412. But the only case cited from our books to preclude the defendant from the protection afforded by lapse of time, is Nixon vs. Bynum, 1 Bail. 148. Nor is that decision necessarily inconsistent with these principles when the facts are scrutinized. Until within eleven years of the institution of the proceedings, the premises had been in possession of the mortgagor and his devisee, Thomas J. Howell. By the stat. 3 and 4 W. and M. c. 14, (P. L. 87,) *600even prior to 5 Geo. 2, c. 7, Thomas J. Howell might have been sued at law on the bond of his father, the testator. He was the debtor of the obligee, and he and the heir, by the provisions of the Act 3 and 4 W. and M., could be united in the same suit at law. Under these circumstances it might well be that the devisee could neither avail himself of the statute of limitations or the presumption arising from lapse of time; and, as has been already stated, his alienee, Bynum, had only a possession of eleven years. But upon the principle now advanced, a purchaser who has been in quiet possession fora longer period than would bar a writ of right in Westminster Hall, might be turned out of his freehold by an outstanding incumbrance of which he. had never, in fact, heard, notwithstanding the presumed notice from registration, a notice (it may be remarked) which very able jurists have held not to deprive him of the benefit of his possession, but only to preclude him from the plea of purchaser for valuable consideration, without notice. See Thayer vs. Davidson, ut supra, and Drayton vs. Marshall, Rice, Eq. 393. It is a misapprehension to suppose that the defendant’s title is derived through Robert Robinson, or that Robert Robinson ever made any payment, except on the execution against Woods administrator of Robt. Kennedy, Robinson being surety on the administration bond. Robt. Kennedy, the mortgagor, conveyed to John Kennedy in 1831 — he to Coleman and wife, and defendant holds under their conveyance. The payments by Robinson were in 1842-3-4.

But in another point of view it is to be feared injustice has been done to the defendant. In 1837, fifteen years prior to the institution of these proceedings, the heirs and distributees of Robt. Kennedy (the obligor in the bond) filed a bill against the administrators for an account, and by the report of the Commissioner 24th August, 1S37, it appeared that, after making allowance for the payment of this particular debt, set down at $2,895 30, and also of all the other creditors of the *601intestate, a balance remained in the hands of the administrators for distribution, of $433 10, and this report was confirmed by the Court.

The creditors were not parties, nor was it necessary that they should he. It was also proved that, in the same year, the heirs of Robert Kennedy sold, portions of his real estate. The parties all resided in the village of Chester. In Valk vs. Vernon, 2 Hill, Ch. 257, which was a bill by a creditor to charge the real estate of his debtor in the possession of his devisee, Chancellor Harper, adverting to -the propriety of making the personal representative a party in such case, refers it to the principle, that the Court of Equity in all cases delights to do complete justice, and not by halves, as first to decree the heir to perform this covenant, and then to put the heir to another bill against the executor to .reimburse himself out of the personal assets, which may be more than sufficient to answer the covenant; and where the executor and heir aré both before the Court, complete justice may be done by decreeing the executor to pay as far as the personal assets wjll extend, the rest to be made good by the heir out of the real estate. In ordinary cases it may be inconvenient and a hardship upon the creditor to delay him in the enforcement of his mortgage until an account be taken with his executor. But, in Goodhue vs. Barnwell, Rice Eq. 198, the principle was fully recognized that if the creditor stands by and suffers the personal representative to misapply or squander the assets, he is not entitled to recover against the heir. It cannot be supposed that the defendant in this case is in any worse condition Pending the proceeding against him to foreclose this mortgage, he filed what he entitled a cross bill against the plaintiff as well as against the administrators of Robert Kennedy and the surety on their bond. The object was, among other things, to shew that the debt was paid, or ought to. have been paid, from the personal estate of the obligor, and, in any event, to have complete justice done by directing payment, in the first *602instance, by those primarily liable, and only resort to the defendant in the event of a deficiency. This bill was dismissed by the Chancellor, and this judgment forms one of the grounds of appeal.

The whole case was referred to the Court of Errors in order to give the defendant the benefit of this ground. I think the defendant should have been allowed the opportunity of presenting his equities as arising under this bill, and that the past delay of the plaintiff in enforcing his rights against the real debtor, or his assets, precludes him from insisting on a decree against the defendant until an investigation has been made and the equities adjusted.

In respect to the mode of calculating interest 1 should concur in the judgment of the circuit Chancellor.

We concur in the substance of so much of this opinion as relates to the release of the mortgage; but not in so much as relates to the subject of interest.

I concur in the opinion of Chancellor Dun-kin, on the point of presumption, and will add some observations to what he has said about the calculation of interest.

In the case of O’Neall vs. Sims, (1 Strob. 215) the opinion had the unanimous support of the five Judges that heard the case. In the case of O’Neall vs. Bookman, 9 Rich. 80, only four Judges sat, and the decision was made by three, who had, between the two cases, taken the places of three of the five that sat in the first case.

The Act of 1777, P. L. 286, forbids (the taking of greater interest than $7, for the forbearance orf $100 one year, and “ after that rate for a greater or lesser sum, or for a longer or shorter time.” $14.49 for the forbearance of $100 two years is then usurious, and if it is to be sanctioned by the agreement of the parties, so might be 10 per cent, or the compounding at half yearly rests. A Court of Equity may subject *603a delinquent trustee to usurious interest by way of punishment; but this cannot justify a stipulation of parties to the same eifect.

There is a difference between an express promise to pay interest up to the time when the principal may become due, (which is only a mode of expressing an increase of principal,) and an agreement to pay interest on interest, when at any moment payment of the whole amount, principal and interest, may be required by the creditor.