1 Abb. Ct. App. 242 | NY | 1864
By the Court.
The mortgage, so far as it is now sought to be enforced, wag created, among other objects, to secure to the plaintiff, then an infant of tender age, a portion of her father’s property, to aid in her maintenance during her infancy, and to furnish her with a small independent estate in real property. The differences which had arisen between her parents presented the occasion for this gift; but its validity did not depend upon the merits of that controversy, nor yet upon the legal effect of the agreement for a separation between her father and mother, nor upon the legality of the provisions made by the former for the latter. The contract, so far as it relates to that provision, has either been performed or it is now incapable of performance. The party entitled to its benefits has been long dead, and it does not appear that she left any representative capable of enforcing any of its stipulations which were not performed at her death. Moreover, this suit was not brought to recover such an interest. But the plaintiff survives, and is entitled to the settlement attempted to be made in her favor, provided it was legally valid when made, and provided her ncd ^een lost by lapse of time.
there app^r noi$tlof creditor3 do not stand in the TaD and any in this case, it is perfectly
A mortgage is an executed conditional transfer of the real estate mortgaged. In judgment of law, any conveyance which would be sufficient to pass the title to a purchaser conveys it to the mortgagee.. The instrument executed by William Bucklin to Vedder Green would be a perfect deed of bargain and sale but for the condition by which it was to become void upon performance of the agreement. It expresses a pecuniary consideration which, though nominal, is as adequate to waive a use as though it were the full value of the land; and though it may not have been paid, the defendant is estopped by his deed from denying its payment. By the Revised Statutes it is denominated a grant; but for all substantial purposes it has the effect of a deed of bargain and sale. 1 R. S. 738, 739, §§ 137, 138, 142. At common law, and before the jurisdiction of courts of equity to relieve against forfeitures had been established, this deed would have vested in the trustee an estate in fee simple defeasible only by the performance of the conditions. This is of course a technical view of the nature of the mortgage.
By applying to the transaction the equitable doctrines of the courts of equity, now also recognized to a great extent by the courts of law and by modern statutes, the mortgage is simply a security for the payment of the money it was given to secure, and the mortgagor continues to own the land, while the mortgagee’s interest is that of a creditor only.
But the defendants’ position is formal also. They insist that courts of equity will not decree the performance of a voluntary executory agreement even where the subject is a portion intended for a child or other relative, and authorities are referred to sustain that position. Duvoll v. Wilson, 9 Barb. 487, and cases cited; but see Souverbye v. Arden, 1 Johns. Ch. 240, 266, and cases referred to by Chancellor Kent. If the settlement be an executed one, like a deed or mortgage, the doctrine relied on has no application. The title of the mortgaged premises is
A point is made that the mortgage is invalid because made to Green as a trustee, he confessedly having no beneficial interest, and because the purposes of the trust are not such as are comtemplated by the fifty-fifth section of the chapter of the Revised Statutes relating to uses and trusts. Now, although for the purpose of showing that a mortgage is an executed conveyance, and not a mere executory agreement, I have recurred
I think, therefore, that the instrument contained a valid mortgage of the land described in it, and that it was an available security for the performance of the contract to purchase and convey lands to the value of one thousand dollars to and for the benefit of the plaintiff.
2. The remaining question is whether the plaintiff’s rights have been lost by the failure to prosecute in time. The time
The rules respecting the time for commencing actions, as affecting this case, are those prescribed by the Revised Statutes, there being a saving clause in that respect as to cases in which the right of action had accrued, in section 73 of the Code.' The form in which the defendant is to avail himself of this defense, that the action was not commenced in time, is prescribed by the Code, which declares that the objection that the action was not commenced within the time limited can only be taken by answer. § 74. This rule of pleading applies to the former law of limitations as well as to that established by the new system. But I think the answer is sufficient, though in a very general form.
The Revised Statutes provide that, after the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to be extinguished by payment. 2 R. S. 301, § 48. The case is not within this provision, because the mortgage is not an instrument for the payment of money but for the conveyance of land. Moreover, that provision relates to actions at law, and the Revised Statutes have furnished distinct and different limitations for such actions, and for suits in equity. 2 R. S. pp. 299, 300, 301. There is a separate article devoted to the time of commencing suits in courts of equity. Art. 6. Such remedies were not denominated actions, until the Code prescribed a new nomenclature. Section 52, of article 6, contains the limitation applicable to this case. It declares that bills for relief in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after. The next following section provides that if the person entitled to file any bill spec
The idea that the trust which was vested in Green devolved upon the court of chancery, at his death, by force of the statute (1 R. S. 730, § 68), is not well founded. The title of the Revised Statutes in which the section is found, relates exclusively to real estate, as will be seen by its title and the entitling of the respective divisions, and by an examination of its several provisions. This being, as has been shown, a trust of personalty, is not within the purview of these provisions, but depends upon the rules of the common law and the doctrines of Courts of equity. No doubt these courts, on the application of parties .interested in a trust of personal property, may supply the defect'of a trustee. The beneficiary is the party entitled to institute proceedings for that purpose. Hence the plaintiff, on the death of Green, might have applied for the appointment of another trustee, or, having the entire interest in herself, so far as relates to her rights in the mortgage, she might have filed her bill for a foreclosure.
There is another view of this question which I think avoids the bar of the statute. The interest of the trustee was merely nominal. He had not the slightest interest in the agreement, the performance of which was attempted to be secured by it. The plaintiff was the sole beneficiary as respects the land agreed to be conveyed to her, except that her mother, during her life,, had a certain interest in. her possession, which interest has long been extinguished. Now a court of equity in which alone mortgages can be foreclosed, takes notice of the cestui que trust as well as that of the trustee. The plaintiff was perfectly competent, the moment the mortgagor had broken the condition, to commence a suit against him and against Green, the trustee, to enforce the mortgage by procuring a foreclosure of the equity of redemption and the sale of the mortgaged premises. That is precisely the claim which she asserts and seeks to enforce in the present suit. That right accrued to her at the
Henee I think the statute was not a bar and that the supreme court was right and that its judgment ought to be affirmed.
H. R. Seldev, J., was absent. All the other judges concurred.
Judgment affirmed, with costs.