Jackson ex dem. Livingston v. De Lancey

| N.Y. Sup. Ct. | Aug 15, 1814

Yates, J.

delivered the opinion of the court. I do not think it necessary to examine into the correctness or legality of the proceedings to revive the judgment against-the heirs and tertenants of Lord Stirling; nor whether the premises passed by the sheriff’s deed under that judgment, because the counsel for the defendants, on the argument, disavowed to claim under it.

The question, then, is as to the validity of the title under the mortgage given by Lord Stirling to Anne Waddell.

The general description in this mortgage is liable to no objection ; a party conusant of his rights may sell or mortgage, by general description, though an officer must define what he sells,

It was stated, on the argument, that the proof of the will of Anne Waddell was insufficient, and ought not to have been received as evidence of title; it was read on the trial as a link in the defendants’ title, without objection, which might otherwise have been obviated. It is now too late to make it. The will, therefore, for the purposes of this argument, must be considered as duly proved.

By this will, Anne Waddell directs her executors to collect, with all convenient speed, the one third part of the estate left her by her husband, and the interest money since accrued and due to her or to grow due, and all outstanding debts of every kind, and this, with all the rest of her estate in the Hardenbergk patent, and elsewhere, whatsoever and wheresoever, to be turned into money by them, and be equally distributed among her five children, share and share alike, who are to be tenants in common in fee of the severalty until such sale and distribution be made. The testatrix then gives 751. to each executor for his trouble, &c.

The words, as used, are not particularly appropriated to the conveyance of real estate, but are applicable to both personal ánd real; it is all her estate whatsoever. (6 Cruise, 231. s. 113. 1 Atk. 605. in note. 2 P. Wms. 198. 8 Term Rep, 118. 8 Ves.jun. 417. 5 Ves. jun. 339.)

The term estate evidently applies to all kinds of an estate; the debt and mortgage, consequently, passed by this devise; and as to her real estate, the fee was intended to be vested in all her children, as tenants in common, until distribution made betxveera them; so that it clearly appears never to have been the intention of the testatrix, that William Waddell should hold as trustee. If this is the true interpretation of the xvill, to xvliom ought the tenants to have attorned, but to the children of Anne Waddell, whose legal representative, John Taylor, xvas, as appears by the respective conveyances in evidence, at least sufficiently so, to give force and validity to the transaction. But admitting that the legal estate, created by the forfeiture of the mortgage, did not pass by the xvill, and that it descended to her eldest son, William, as heir at law, who in such case could hold it only as trustee for the executors, and, if no debts exist, (which, for aught that appears, is the fact in this instance,) for the other children. It then might well be questioned xvhether the possession has not been long enough to presume a deed from William, who has slept on his rights since 1791; and the case of England, ex dem. Syburn, v. Slade, (4 Term Rep. 682.) will support this doctrine; but without enforcing this principle, there can be no doubt that John Taylor entered as well under the mortgage, as under the judgments upon all or some of the debts due by Lord Stirling to Mrs. Waddell, also secured by the mortgage. If, then, an attornment, after the mortgage became forfeited, is authorized by statute to a mortgagee, it is equally valid in this case, as the possession by John Taylor must be deemed to have been taken for all the heirs, who cannot be treated by the mortgagor as strangers, and be turned out of a possession, obtained under a mortgage thus held for their benefit, forfeited before such possession was taken, and evidently unsatisfied.

That possession was taken several years subsequent to the forfeiture cannot be denied. It was, in fact, forfeited previous to the revolutionary war, long before the date of Ann Wad-dell’s will; and the possession was taken subsequent to her death. To show that this is an outstanding mortgage, it is only necessary to advert to the documents and evidence before us; - and although the proceedings to revive- the judgments may be deemed insufficient in law, to support the sale under them, by the sheriff of Ulster county, yet they are evidence to show . the conduct and understanding of the party, in relation to the debt, in order to rebut the presumption of payment, by lapse of time and acquiescence.

• That such presumption cannot exist, in this case, is evident. The judgment obtained in March, 1771, must prevent it. But it is said that this judgment is not for the same debt, and, therefore, disconnected with the mortgage. This cannot be the case; the contrary inference is irresistible. The circumstances in evidence will not admit of a doubt that the judgment is on two of the bonds recited in the mortgage, and that the debt is in fact the same. This alone ought, perhaps, to be deemed sufficient to repel the presumption of payment; but it also appears that proceedings were had in 1775 and in 1788, to revive this judgment, and that, in 1790, John Taylor took possession of the premises, and the tenants attorned to him ; so that instead of acquiescence until this period, the greatest attention and vigilance are evinced. But without noticing the proceedings to revive the judgments, the lapse of time from the 2d of December, 1771, the period when the mortgage became due, to the 7th oí April, 1790, the time John Taylor took possession, is not long enough ^ presume payment, and deducting the period of the war, from the 14th of October, 1775, to the 21st of March, 1785, which ought to be done as being conformable to the rule adopted in the statute of limitations, it is wholly insufficient. Subsequent to 1790, Mr. Taylor, as the claimant under the representatives of Anne Waddell, supposed himself secure in the possession of the property, if not on the ground of title under the sheriff’s deeds, at all events under the mortgage, until it should be paid off, and he ought not now to be disturbed in it.'

It might, perhaps, be insisted that the entry on the premises by Mr. Taylor, while in possession of the sheriff’s deed, in 1790, was under colour of title; and that such entry was made by him as ownel- of the land, under a belief that the deed extinguished the equity of redemption ; and that the premises having been thus adversely held by him and his heirs for upwards of twenty years, the remedy in this action is lost. To determine the character of this possession, involves a question as to the extent of the devise to Lady Stirling, contained in the will of Lord Stirling, whether it gave an estate for life or fee simple. Although, in my view, there can bo little doubt as to the true construction of that devise, and, consequently, of the nature of the defendants’ possession, the inquiry, in this instance, is rendered unnecessary by the conclusive evidence that the mortgage, under which they held the premises in question, is outstanding, and, of course, sufficient to protect them in this action. Without, therefore, giving an opinion as to the right of the lessors to redeem, which cannot be made a question here, we are of opinion, that the defendants are entitled to judgment.

Judgment for the defendants.