concurrence"> *398 Mr. Justice Gary,

concurring. This is an action to foreclose a mortgage of real estate, executed to secure the payment of a bond, payable on or before the 1st of December, 1881. The mortgage bears date the 19th of February, 1881, and was recorded on the 7th of March, 1881. This action was commenced on the 25th of November, 1901. His Honor, the Circuit Judge, ruled that the action was not defeated by reason of the fact that there was a failure to comply with the provisions of the act of 1879, which is set out in the opinion of Mr. Chief Justice Pope. We base our concurrence in that opinion on two> propositions that are fully supported by the authorities in this State. First, that tlie statute was not intended to limit the duration of a lien, created by judgment or mortgage, nor to affect any previously existing' right, but its sole intention was to declare a rule of evidence to rebut the presumption of payment. Second, that the presumption of payment does not arise until there is a right of action on the debt secured by the mortgage.

Our first proposition is sustained by the case of Henry v. Henry, 31 S. C., 1, 7, 9 S. E., 726, in which the Court says: “We must ascertain the old law which this act was designed to amend. Conceding that under that law there was no limit to the duration of the lien of a judgment or mortgage, yet it was well settled that after the lapse of twenty years, the debts secured by such liens, were presumed paid, and thus the liens were extinguished, but still such presumption could be rebutted by proof of some payment on account, or some such positive acknowledgment, as would imply a promise to pay. This being the state of law, it seems to me that the object of the act, was not to limit the duration of such liens, but simply to declare (and it is noticeable that such was the word used in the title), what should be the evidence of such payment or new promise as would be sufficient to rebut the presumption of payment. Under the old law neither a judgment nor a mortgage after the lapse of twenty years, constituted a lien, because of the presumption of payment, which, though susceptible of being rebutted by evidence, the nature and kind of *399 such evidence was not distinctly defined, and the object and effect of the act was to declare what should be, after the passage of the act, the kind of evidence necessary to rebut the presumption of payment. The act in substance declares that no judgment or mortgage shall constitute a lien after the lapse of twenty years, unless some note of payment on account or some written acknowledgment of the debt is recorded on the record of the mortgage, or filed with the record of the judgment, the only alteration being in the rules of evidence, not in any wise affecting the previously existing right.” The principles of the case last mentioned are affirmed in Wood v. Milling, 32 S. C., 378, 10 S. E., 1081.

In support of our second proposition, we quote from the case of Brown v. McCall, 3 Hill, 335, as follows: “In general, after a lapse of twenty years, the law will presume that to have been done, which should have been. But when does the time begin to run? If a man enter into' a bond with a condition, to pay money, or to perform any other act, presently, after twenty years the presumption of payment will arise. But if the condition be, that he will pay the money, or do the act, at the expiration of ten or twenty years, then I apprehend the presumption does not arise, until twenty years after the time stipulated for performance.”

To the same effect is Wood on Lim. of Actions (section 172), in which it is said: “It must be borne in mind that, unless the instrument or obligation creates a present right of action, the presumption like the statute only attaches from the time when the right of action accrued.”

In the case of Suber v. Chandler, 18 S. C., 526, it was held that the statute of limitations is inert and inoperative until a right of action arises, and very properly overruled McGowan v. Hitt, 16 S. C., 602. The same rule applies to presumptions.

In the case of Curtis v. Renneker, 34 S. C., 468, 491, 13 S. E., 664, the mortgage was executed on the 27th of March, 1867, to secure a bond payable in six, nine and twelve months *400 after date. The action to- foreclose the mortgage was commenced on the 15th of March, 1888. Among other things the Circuit Judg'e ruled that the failure to comply with the requirements of the statute defeated the right of action on the mortgage. This Court said: “If the view taken by the Circuit Judge should prevail, then it would be possible and perhaps not improbable that a mortgage might lose its lien before any right of action to enforce it could arise. If a mortgage debt should be made payable more than twenty years after the date of the mortgage, as is known to- be the case with mortgages on railroads, then the lien would be lost before any right of action could arise, unless, perhaps, there had been default in the payment of interest in the meantime.”

Suppose, then, a mortgage was executed to secure payment of a bond that was not to mature until the expiration of twenty years. The right of action, of course, would not arise until the bond became payable. Yet we would have the anomalous condition of a mortgage being defeated, by the presumption of payment before its maturity, and before a right of action arose thereon, unless it is held that the presumption does not commence to run until maturity. To hold otherwise, we must necessarily conclude that the statute was not merely intended to declare a rule of evidence to rebut the presumption of payment, but also- to affect the rights of parties by creating a new presumption, which the case of Henry v. Henry, supra, shows was not the intention of the statute.

The foregoing construction of the statute leaves sections 94 and 111 of the Code in full force, by which it is provided that a mortgagee has the right to- foreclose his mortgage at any time within twenty years after the debt becomes payable.

For these reasons we concur in the opinion of Mr. Chief Justice Pope.

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