The mortgage, so far as it is now sought to be enforced, was 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 rights have not been lost by lapse of time.
1. Where the rights of creditors do not stand in the way, and there appears not to have been any in this case, it is perfectly lawful for a parent to made such provision out of his estate for a child or children, by present, gift, or by testament, as he may think proper. There are cases in which a voluntary executory gift will not be enforced by the courts ; but an executed one is as valid as though based upon a full pecuniary consideration.
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
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 simply. 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 to sustain that position. (Duval v. Wilson, 9 Barb., 487 and cases cited, but see Souverbye & v. Arden, 1 Johns. Ch., 240, 26, and eases 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. transferred'by legal conveyance. . The mortgagor- retains an equity of -redemption' equivalent,:for many-purposes, to á general ownership of the land, but yet in point of form, an equity. The mortgagor may, it is true come into a court-of equity to enforce.his mortgage, as the mortgagee must in order to redeem The reason why ,a mortgagee must resort to equity is not because
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 not being such as are contemplated by the fifty-fifth section of the chapter of the Revised Statutes relating to uses and trusts. Row, although for the purpose of.showing that a. mortgage is an executed conveyance, and not a mere executory agreement, I have recurred to the legal nature of that instrument as a conveyance of the- land mortgaged, I . am not prepared to concede that it should be.regarded as “ a disposition of the land by deed ”- within the meaning of the. article, of the Re
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 $1,000 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 within which William Bucklin was to have made the
The rules respecting the time for commencing actions, as it affects this case, are those prescribed by the Revised Statutes, there being a saving in that respect as to cases in which the right of action had accrued, by section seventy-three 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 term.
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 this 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.) Sueli remedies were not denominated actions, until the Code prescribed a new nomenclature. The fifty-second section of the sixth article 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, pro
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 B. S. 730, § 68), is not well founded. The title of the Bevised Statutes in which that 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. Ho 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. How a court of equity in which alone mortgages can be foreclosed, tabes 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
Henee I think the statute was not a bar and .that the Supreme Court was right and that its judgment ought to be affirmed.
All the judges concurring,
Judgment affirmed.