3 Barb. 305 | N.Y. Sup. Ct. | 1848
The first question which I propose to consider in this case is, is the complainant entitled to redeem, and to have an account of the rents and profits of the land, after the lapse of twenty years?
It is a familiar and well settled rule in equity, that twenty years possession by a mortgagee, without any account or acknowledgment of a subsisting mortgage, is a bar to all equity of redemption; unless the mortgagor labors under the disability contained in the proviso of the statute of limitations. (Moore v. Cable, 1 John. Ch. Rep. 385. Demarest v. Wynkoop, 3 Id. 129. Slee v. Manhattan Co. 1 Paige’s Rep. 48. Hughes v. Edwards, 9 Wheat. Rep. 489. Blake v. Foster, 2 Ball & Beat. 402. Dexter v. Arnold, 1 Sumner, 109. Ross v. Norvell, 1 Wash. 17. 1 Powell on Mortgages, by Coventry & Rand, 370, 371, note D. and cases there cited, pages 379, 382, 385, 386. Baron v. Martin, 19 Ves. 327. 3 Brown’s Ch. Rep. 243. Howland v. Shuntleff, 2 Metcalf’s Rep. 26. 4 Kent’s Com. 187, 3d ed.) And this limitation was adopted and recognized by the courts of equity in cases analogous to the statute of limitations. Judge Story, in the second volume of his Equity Jurisprudence, page 370, section 1028, says: “ In respect to the time in which a mortgage is redeemable, it may be remarked that the ordinary limitation is twenty years from the time when the mortgagee has entered into possession after breach of the condition under his title, by analogy to the ordinary limitation of writs of entry, and actions of ejectment. If therefore the mortgagee enters into possession in his character of mortgagee, and by virtue of his mortgage alone, he is for twenty years liable to account, and if payment be tendered to him he is liable to become a trustee of the mortgagor, and to be treated as such. But if the mortgagor permits the. mortgagee to hold the possession for twenty years without accounting, or without admitting that he possesses a mortgage title
In the case of Hansford v. Hardy, (18 Ves. 455,) a redemption was allowed after the mortgagee had been in possession
It is said, in many of the cases, that if the mortgagee has rendered an account of the amount due upon the mortgage, within twenty years, this does away with the presumption of the mortgagee’s title, and allows a redemption to the mortgagor ; or if the mortgagee has recognized the mortgage as an existing mortgage. Now it seems to me that the publication, in the newspaper, of the statement of the mortgage, and of the amount claimed to be due thereon, and the proceedings to foreclose it, must be regarded as a statement of the amount claimed to be due on account of the mortgage, and as a recognition of the mortgagor’s right to redeem. I think it will not be denied that if the foreclosure had proceeded, and there had been a sale of the premises, and they had sold for a sum more than sufficient to satisfy the mortgage, the surplus would have belonged to the complainant. And I have no doubt of the complainant’s right to redeem, and have an account of the rents and profits taken in this case, if our statute of limitations does not intervene to prevent. The 4th section of our statute of limitations of suits in equity, and which took effect on the first of January, 1830, is as follows : “ 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.” (2 R. S. 229, § 52, 2d ed.) This case falls within the latter clause
It is referred to Henry R. Mygatt, upon the pleadings and proofs in the original suit and on the bill of revivor and supplement, and such other proofs as the parties may produce, to take and state an account of the rents and profits of the mortgaged premises. All the depositions in the original suit, and the testimony taken on the bill of revivor and supplement, are allowed to be read upon the hearing before said referee. The said referee is to take and state an account of the amount due upon the bond and mortgage, to credit the complainant with all pay