1 N.Y.S. 789 | N.Y. Sup. Ct. | 1888
Upon the facts as found, the judgment is amply sustained. There is no certificate that all the evidence given upon the trial is all refuted, and hence, even if there was a substantial dispute as to the facts, this court is at liberty to presume that there was evidence sufficient to sustain the findings. The charge of $723 upon the farm devised to Nathan Jones was recognized by him in his will, which took effect March 8,1853, and Susan Jones, under this last-named will, took' the farm in trust and subject to this lien, so that until the death of Susan Jones, in 1869, she united in her own person the absolute ownership in her own right of the $723 charge, and the legal fee of the land as trustee for Joseph and herself. So long as this state of things continued, there could be no merger of the lien, and no adverse possession of the land as against this $723 charge or lien. Under these circumstances, we do not think the charge became a formal claim against a devisee so as to fall within the principle laid down in Loder v. Hatfield, 71 N. Y. 92, and therefore it is not barred by the statute of limitations. The statute did not run up to the death of Nathan Jones, as a credit was given, without interest, during his life, and his will made it a new charge upon the real estate left by him. The charge continued a trust fund until the death of Joseph Jones in 1882, and therefore is not barred. This is the only question necessary to be determined upon that appeal.
