Demarest v. Wynkoop

3 Johns. Ch. 129 | New York Court of Chancery | 1817

The Chancellor.

This is a suit to redeem a mortgage, executed as early as 1771. Persons claiming an estate, in fee, under the mortgagee, have been in possession of the mortgaged premises since May, 1788, or 27 years before the filing of the bill.

Several objections have been taken to the suit.

1. The length of possession is setup, and relied upon, . , , . m the answer, as a bar to the claim.

It is a well-settled rule, that 20 years possession, by the mortgagee, without account or acknowledgment of any sub sisting mortgage, is a bar to a redemption, unless the mortgagor can bring himself within the proviso in the statute of limitations. This proviso saves the rights of infants, feme coverts, &c. if they bring their action within 10 years after their disability removed. The analogy between the right , , . , , . , _ ° to redeem in this court, and the right of entry at law, js presumed complete and entire throughout, so that the mortgagor who comes to redeem, after the 20 years, must show himself within one of the exceptions that would save ]jjs entry or ejectment at law; and he must, likewise, show that he had filed his bill within 10 years after his disability ceased. The cases which I have looked into, and to which I now refer, are uniform in support of this just an|i necessary rule; and the construction of the statute' is, the same here as at law. The same limitations áre adopted, with the allowance of the same time for disabilities. (Jenner v. Tracey, note to 3 P. Wms. 287. Belch v. Harvey, ib., and in app. No. 12. to Sugden’s Law of Vendors, 3d edit. Lord Kenyon, in Bonny v. Ridgard cited in 17 Vesey, 99. Lord Camden, in 3 Bro. 639. note. Anon. 3 Atk. 313. Aggar v. Pickerell, 3 Atk. 225. Lord Rosslyn, in Lytton v. Lytton, 4 Bro. 458. Hodle v. Haley, 1 Vesey & B. 536. Reeks v. Postlethwaite, Cooper's Eq. Rep. 161. Bairon v. Martin, id. 189. Moor v. Cable, 1 Johns. Ch. Rep. 385.)

The construetute °ofhei¡miaamTin equity as at law.

In this case, Daniel Ludlow, who claimed the mortgage, took a deed, in fee, on the 7th of May, 1788, from Banta, one of the mortgagors, and from Nagel and his wife, who was one of the heirs of Banta's wife, the other mortgagor. From that time, we are to consider the representative of the mortgagee in possession, claiming to hold the land, not in trust, or mortgage, but adversely, and in his own right. At that time, the plaintiff, Hannah Demarest, was an infant of the age of seven years, and entitled to all the equity of redemption which she now sets up: She was of age in 1802, and her bill was not filed until 1815, so that not only the 20 years had elapsed since the mortgagee’s possession, but the 10 years since her disability of infancy ceased. She had then lost her equity of redemption by lapse of time. It is true she has not had 20 full years, free of disability, to redeem, but she has had 10 years free of disability, and more than 20 years in the whole have elapsed, and this is all that the statute allows. For this purpose Í may refer to the observations which I made in the supreme court, in the case of Smith v. Burtis, (9 Johns. Rep. 181.) and which appear to me to be founded on á sound construction of the statute of limitations. The party has, in every event, 20' years to make his entry; and if under disability during any part of that time, he has $0 years, and no more, after the disability ceases. It may so happen that the 20 years, and more, will elapse during the disability, and then 10 years will be afterwards allowed cumulatively % or the disability may cease, so far within the period of the 20 years, as to allow of only 20 years in the whole, though part of that period be covered by the disability. This construction does not give to persons labouring under disability, the same number of years after they become'of competent ability, as it allows to other persons who were under no such disability. Such is the policy, and the very language of the statue, for it did not mean, as in the case of the limitation of personal actions, that the party should, at all events, have the full period of time after the disability had" ceased, because the words of the act are explicit, that the extension of the time of making the entry beyond the twenty years, is in no case to exceed ten' years after the disability is removed. This is also the amount of the doctrine contained in the case of Doe, ex dem George and Frances his wife, v. Jesson, (6 East, 80.) for there the whole period, from the time that the right descended' or accrued, to the time of bringing the suit,, was but 27 years, and above eight of the first years-of that time had been consumed by an acknowledged disa- - bility; yet the right of entry was held to be tolled by lapse of time.

In the case of Belch v. Harvey, one of the cases above referred to, the cause was ended by consent of parties, after argument, but Lord Talbot, who had studied the case thoroughly, then observed, that if he had made • a decree, his opinion would have been, that after the disa bility of infancy was removed, the time fixed for proseenting, in the proviso, which is ten years, should also have been observed. The proviso, as he said, contained an exception of several cases out of the purview of the statute, and if the parties at law would avail themselves of the proviso, they must take it under such restrictions as the legislature hath annexed to it, and that is, to sue within ten years after the impediment ceases. Lord Talbot also adds, “ why should not the same rule govern in equity ? I think, there is great reason that it should. The persons who are the subject of the proviso are not disabled from suing, they are only excused from the necessity of doing it during the continuance of a legal impediment; therefore, when that difficulty is removed, the time allmoed for their further proceeding should be shortened. If they would excuse a neglect under the first part of the proviso, should they not do it upon the terms on which such excuse is given V-

The disability which entitles a party to the hf the tationemusth toisi when the tight of action first accrues.

But another difficulty may be started in this case; during the infancy of the plaintiff, a second disability ensued, by means of her marriage; and it has been made a question, whether a. succession of disabilities, thus closing on each other, can be permitted as an excuse within the statute. Upon one construction she would have the whole period „ . , , - 1 ol her coverture, and ten years afterwards.

I am clearly of opinion, that the party can only avail himself of the disabilities existing when the right of action “rSt

if several disabilities exist together, at the time the right of action accrues, the statute does not begin to run until the party has survived them all. (1 Plowd. 375.) But the case of Doe v. Jesson, already referred to, is an authority to show that cumulative disabilities cannot be allowed; There the disseisin happened when the right owner was an infant, and he died in infancy* leaving his infant sister his heir; and the court of K, B held* that she was bound, notwithstanding her infancy, to bring her ejectment within ten years after the death of her brother, as more than 20 years had, in the whole, elapsed since the death of the person last seised.

Successive, or abilities are not within the policy, or ofthe

The policy of the statute of limitations, is to quiet possessions, and extinguish dormant claims. There is much wisdom in the general provision, and though courts of . ., . , , , equity are not within the letter oí those statutes, they have generally followed the rule, and held equitable rights eluded by the same bar, and subject to the same exceptions. If there are instances to the contrary, they are special cases, as those of direct trusts or as that of Bond v. Hopkins, (1 Sch. and Lef. 413.) where lapse of time was attempted to be set up manifestly against conscience, or where there is fraud in the transaction. (1 Johns. Ch. Rep. 594.) If disability could be added to disability, claims might be protracted to an indefinite extent of time, and to the great injury and oppression of the country. According to an expression of Lord Eldon, “a right might travel through minorities for two centuries.” It would be impolitic, as well as contrary to established rule* to depart from the plain meaning* and literal expression of the proviso in the statute of limitations. We cannot well misapprehend the meaning of the legislature. The party bringing himself within the proviso, must be, “ at the time such right, or title,- first descended, or accrued, within the age of 21 years, feme covert, insatie, or imprisoned,” and he must bring his action within ten years “ after such disability removed.”

The case of Eager v. The Commonwealth, (4 Tyng's Mass. Rep. 182.) is another, and a very weighty decision on this point. The plaintiff was an infant,- and before the termination of her infancy, the disability of coverture occurred, but the supreme court of Massachusetts held, that the latter disability not existing when the right first accrued, was not within the proviso, and that the party was bound to have brought her writ within the given time affe# the first disability had ceased. The supreme court of Connecticut did, indeed, in the case of Eaton v. Sanford, (2 Day's Rep. 523.) recognize a right which had floated through successive disabilities, for near sixty years. But no reasons of the court are assigned in the case, and the decision itself was afterwards disregarded, and the question treated as an open one by the supreme court of the same state, under a new organization of the court, in the case of Bush v. Bradley, (4 Day's Rep. 298.) In the last case, there was no decision upon the point, but I may refer to the opinion of one of the judges, (Mr. Justice Smith,) vindicating the construction given in 6 East, by a plain and unanswerable argument.

The construction which excludes from the benefit of the proviso, in-all our statutes of limitations, successive or cumulative disabilities, is within the reason and spirit of the decision in the celebrated case of Stowel v. Zouch, (Plowd. 353.) The principle of that case decidedly governs this question, and for the purpose of showing this, it may nót be amiss to give a "short review of it.

Siowel being seized in fee of certain lands, was disseized by Zouch, who levied a fine with proclamations. Three-years afterwards, Stowel died, without entry or claim to-avoid the fine, leaving his heir at law, an infant of the age df six years. The infant made no claim during his minority, but entered within one year after he came of age. It was determined, by a great majority of the judges, in the exchequer chamber, after several solemn arguments, (for the case was argued twice in the C. B. and twice in the exchequer chamber, before all the judges of England,) that the demandant was barred, by reason of not making his claim before the expiration of the five years, which had begun to run in the time of his ancestor, and expired in the time of his infancy. No point was, perhaps, ever more fully, ably, and profoundly argued. The discussion was aided by illustrations drawn from reason, convenience, policy, precedents, and the principles of the common law; in short, it was adorned by all the learning and eloquence of Westminster Hall The argument and decision established the doctrine, that the exceptions in the statute, of fines of 4 Hen. VIH. in favour of infants and others, extended only to such infants, &c. to whom the right accrued, or who actually possessed a right when the fine was levied, and that no such right had at that time descended, or accrued to the demandant, for his ancestor was then alive; that the circumstance of the demandant being an infant when his ancestor died, was of no avail, because the exception in the statute gave the excuse of infancy to those only to whom a right first accrued, or who had a right at the lime of the fine levied, and, therefore, the plea of infancy did not apply to the case; that no new right accrued after the fine was levied, as the demandant’s title was as heir to his ancestor, in whom the right attached when the fine was levied ; that public tranquillity was more to be favoured than the nonage of an infant, and that if infancy, closing on infancy, was to be allowed in succession, “the matter might possibly be delayed many hundred years;” that the statute intended to limit a certain time for the first right, and which was not to be exceeded by exposition or equity, though particular persons might suffer by it; “ that the public repose, was more tó be regarded than the private convenience of any • particular person, whether he be an infant, or of unsound mind, or in other degree;” that if a disability terminates, and a party within one month thereafter, becomes disabled by a new disability, as imprisonment, unsound mind, &c. and so continues all the five years, or, if at the end of the first month of the five years, he dies, leaving an infant heir, the statute continues to run, notwitstanding the subsequent disability.

The great principle of this case, that the disability within the proviso, must exist when the right of entry accrues, and that a subsequent disability is of no account, was recogKjzed and confirmed in Doe v. Jones, (4 Term. Rep. 300.) Lord 'Kenyon said, that one uniform construction of all the statutes of limitation had prevailed, down to that moment, and that “ it would be mischievous to refine, and to make nice distinctions between the cases of voluntary and involuntary disabilities; (as one of the counsel, with-? out any sufficient warrant, had attempted) but in both cases, when the disability is once removed the time begins to run.” It runs, said another of the judges, notwithstanding any subsequent disability, either voluntary or involuntary. The case of Doe v. Shane, M. 28. G. 3. (cited in the note to 4 Term Rep. 306.) is, also, a very strong case on this point. The plaintiff against whom a fine was set up in bar, was of sound mind when the fine was levied, but he became insane about two years afterwards, and the question was, whether the time continued to run against him while he was in that state. Erskine, for the plaintiff, found the current of authorities so strong against him, that he would not pretend to argue the question, and the K. B. said the point was too plain to be disputed, and the rule for a nonsuit was made absolute.

The doctrine of any inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long, and, I believe, uniformly exploded. General words in the statute must receive a general construction, and if there be no express exception, the court can create none. It was agreed, without contradiction, in Stowel v. Zouch, (Plowd. 369. b. 371 b.) that the general provision in the statute of fines would have barred infants, feme coverts, and the other persons named in the proviso, equally with persons under no disability, if they had not been named in the exception or saving clause. So in Dupleix v. De Roven, (2 Vern. 540.) the Lord Keeper thought it very reasonable, that the statute of limitations should not run when the debtor was beyond sea, but there was no saving in the case, he could not resist the plea of the statute. The same doctrine is declared, in explicit and impressive terms, by Sir Wm. Grant, in Beckford v. Wade, (17 Vesey, 87.) and who refers to the opinion of Sir Eardly Wilmot, in Lord Buckinghamshire v. Drury, (Wilmot's Opinions, 177. s. 194.) and to the decisions in the common law courts, (Hall v. Wybourn, 2 Salk. 420. Aubry v. Fortescue, 10 Mod. 206.) that though the courts of justice be shut by civil war, so that no original could be sued out, yet the statute of limitations continued to run.

The opinion of Lord Redesdale, in Hovenden v. Annesley, (2 Sch. & Lef. 630. 640.) and of Lord Manners, in Medlicott v. O' Donnell, (1 Ball and Beatty, 156.) are remarkably elaborate in tracing the authorities, and in enforcing the duty of a court of equity to render entire obedience to all the provisions of the statutes of limitations.

Before I leave this point, I ought to notice the case of Lamar v. Jones, (3 Harris and M'Henry’s Rep. 328.) in which the late Chancellor Hanson, of Maryland, adopted the English rule, and held that the equity of redemption was barred after 20 years’ possession by the mortgagee, without interest paid, or an account, and when the lapse of time was relied on in the answer, and ten years had expired after the disability had ceased. This would have been a case perfectly in point, but it was reversed on appeal on the ground, that the court of chancery in England had not adopted that part of the statute of limitations which allows only ten years to infants, after they come of age, to bring their actions, and the Court of Appeals considered what Lord Talbot had said in Belch v. Harvey, as only a dictum. But, I apprehend, that the opinion of Lord Talbot, formed as it was, after argument, and ready for delivery, has all the weight due to his very enlightened judgment. Lord Camden, in Smith v. Clay, (3 Bro. 639. note.) jcites that very case and opinion, to show that the statute of .limitations, in all its provisions, had been adopted, and become the “ settled,” law in equity. The case was also cited by the counsel in Lytton v. Lytton, (4 Bro. C. C. 458.) and Lord Rosslyn admits, that a similar proviso in the statute of limitations of 10 and 11 W. III. limiting infants to five years after they come of age, to bring error, was to be adopted with the provisions of that statute, as applicable to the analogous case of bills of review. This is a clear judicial sanction to the doctrine of Lord Talbot, and, therefore, as well upon authority as upon the reason and policy of the rule, I conclude, that the court of appeals in Maryland was, in this instance, mistaken; and with respect to the learned Chancellor’s opinion,- notwithstanding the reversal, I trust I may, without offence, be permitted to say, Sccevolce assentior.

Afeme covert may mortgage, her separate Eusband’sfdebt" mortgagee,117or unde”aepower mortgag^pursuant to the statute, is 3 vdiici bar to tt«M!quitmn. re emp

I conclude, accordingly, that the' lapse of time is here a bar to the right of redemption. The plaintiff has riot excused her laches, and the length of adverse possession being insisted on by the answer, the defendant is entitled to the benefit of it equally as if it bad been .pleaded. (1 Atk. 494.)

2. As this first point is decisive against the bill, I need not touch the other points raised on the part of the defendants ; but it may, perhaps, be more satisfactory to the parties that I should notice, at least, one objection going to the merits of the case.

The sale by the executors of the mortgagee appears to There is no doubt , , , . be also a valid bar to to the redemption. that a wife may sell or mortgage her separate property for her husband’s debts. Her deed, under her separate examination before a competent officer, is as valid, with us, as if s^e Passed her estate by fine, at the common law. Nor do I perceive any objection to her competency to create a power in the mortgagee to sell, in default of payment, If she can convey upon condition, she may prescribe the terms; and it is fit and convenient that the should be able to confer the power. It is one that is recognized and regulated by statute, and is supposed, and has always been deemed, to be incident to the power to mortgage.

inttrcs?°b'cfor6 [or® hattel6' anI petrson£[longi®g to the executor.

It was held in Wotton v. Hele (2 Saund. 177.) that if baron and feme grant land belonging to the wife, by fine, with covenant of warranty, and the grantee be evicted by paramount title, covenant lies, after the husband’s death, against the wife, upon the warranty. This shows that the wife may deal with her land, by fine, as if she was a feme sole ; and it is a much stronger case to hold her bound by the covenant of warranty than by the power to sell.

The power, in this case, was duly executed by the executors, without the heirs of the mortgagee. The power in question was given to the mortgagee, his heirs, executors, &c. and a mortgage interest, before foreclosure, is Considered in this court as a chattel interest, and personal assets, and belongs to the executor. Though the technical fee may descend to the heir, he takes it in trust for the personal representatives. (Thornbrough v. Baker, 1 Ch. Cas. 283. Tabor v. Grover, 2 Vern. 367. Fisk v. Fisk, Prec. in Chan. 11. See also 2 Vern. 193. 1 Atk. 605.)

The sale was in 1791, and one of the children and heirs of the mortgagee had, previously, in 1788, taken a release of the equity of redemption from Banta and Nagel and wife. If the equity of redemption resided in either of them, at that time, there is no pretence for the present suit; if it did not, but was in the plaintiffs, then this purchase was no extinguishment of the mortgage debt. The purchase by Daniel Ludlow was of the equity of redemption.

The testimony is sufficient, that six months’ notice of the sale was given in one of the public papers; and if the proof was lame on this fact, yet the doctrine in Bergen v. Bennet, (1 Caine's Cases in Error, 1.) would cure it It was there held, that after a lapse of sixteen years,- a mortgagee is not to be heard to question the regularity of the notice of sale; and that every apparent defect was to be supplied by intendment.

a deed exepurchaser, after6® a ysale tuefof aypower being’ no intervemn| right.^^ court will, 0“ time,8 ^re-deed was giofn’shUhewhen beeñSdone,hand had been lost, Where the rakeC°none,Win fantsUr °f in"

The sale is proved by the auctioneer, but no deed from the executor is produced, except one, executed for greater caution by the executor, nineteen years after the sale, and which presumes a deed to have been executed at the

between the parties themselves, and where there is no intervening right repugnant to the deed, I do not per-the objection to the retrospective operation and effect of the deed produced. A deed will, in many cases, have relation back to the time of the conclusion of the bargain and sale. (Jackson v. Bull, 1 Johns. Cos. 81.) This will be more especially admitted in this court, which often considers what ought to be done, as done, and will compel the specific execution of deeds.

The defendants are bona fide purchasers, for a valuable consideration, under the title of Daniel Ludlow, the purchaser at such sale. They appear not to be chargeable with notice of any outstanding equity in the plaintiffs; and I am of opinion that, independent of the bar arising from the lapse of time, the plaintiffs are concluded by the execution of the power contained in the mortgage. There is no pretence or allegation of fraud in this case, and though the plaintiff was an infant when the sale was made, she was, notwithstanding, barred of her equity; and if she was not, yet ten years had elapsed after her disability removed. The statute has no saving clause for persons labouring under disability, but it is peremptory that no sale such power shall be defeated to the prejudice of any ^om purchaser, in favour of any person claiming the equity of redemption. Where the statute makes no exception, the. court, as I have already shown, can make none on the ground of any inherent equity applicable to infants.

Though ft purchaser at a puolie sale be chargeable with notice» p„rshateru^er ted by h?.3 no- ¡t ,em% a *f the wife’s sepa» rate estate, the equity of reí demption may the husband hemay dispos* of,t aosts refuseS t^^aving1 ac-}our ,of claim, but barred .by lapse of timé,

/ t 7 {Jackson Though Ludlow, the purchaser at the sale, might be chargeable with notice of facts (if any then existed) fatal to his title, yet a bom fide purchaser under him is not affected by his notice. This is the settled rule. (Jackson v. Given, 8 Johns. Rep. 141.)

3. There was a third objection, to which I think weight might be attached. The husband was to redeem the _ mortgage by paying the bond, and in case of sale, the plus was to be rendered to him. If it be the true construction of the mortgage deed, that the equity of redemption was intended by the wife to be reserved to the husband alone, it seems that he may take it, and, of course, dispose of it, as he did in this case; and the reservation will be good, if fairly procured; (Penne v. Peacock, Cas. temp. Talbot, 42. Brend v. Brend, 1 Vern. 213.) But as I am not quite satisfied in such a construction, and of 6 the evidence of such an intention, I have chosen to place this case entirely on the other points, and I shall consequently dismiss the bill. There were other objections raised to the suit, on which I give no opinion.

There has been some doubt in my mind, how I ought to dispose of the costs; but considering the special circumstances of the case, and that the plaintiffs were in some degree recommended to apply to this court, in the opinion which was given against them on the ejectment at law, (8 Johns. Rep. 168.) I hake concluded, that the bill ought to be dismissed, without costs. It is not usual to give costs, where the unfortunate claimant has colour of claim, and is barred by lapse of time. Costs were accordingly refused to the' defendants, in Hovenden v. Annesley, and its Lamar v. Jones, to which I have already referred. Independent of the lapse of time, here were colourable grounds for discussion.

Bill dismissed, without costs