3 Mo. 516 | Mo. | 1834
delivered the opinion of the Court.
In the year 1827, Craig brought a bill in Chancery against James E. Perry and wife in the Circuit Court of Washington county. The substance of the bill is, that in the year 1810, some time in the spring of the year,he had occasion to borrow the-sum of five Hundred dollars, and that he applied tó James Bryan, who then lived in-the now limits of the county of Washington, to lend him the same; that Craig then lived in Ste.’ Genevieve county, at the Mississippi salt works; ’ that Bryan agreed to lénd him the money, and did do so on the 10th of July of the same year, and that Craig in consideration of said loan, and to secure the re-payment to Bryan, executed to him a deed of mortgage on the same day for a certain negro woman named Sarah, and her child, which negroes with their increase were to be returned to Craig by
The bill then goes on to state, that Sarah has had large increase;, some four or five children, and that they are now all of great value, and that Bryanhas had possession of the said slaves ever since the mortgage was made, till his death in 1820; that the widow of said Bryan continued on in possession of the same till her intermarriage with James E. Perry in 1825; that he then took possession of the slaves, and still coutinues in possession of the same, and refuses to deliver the same to him although he has offered to pay on said mortgage whatever may be due, and that he is still ready
Samuel Perry says he was acquainted with Craig and Bryan before 1810, and since; that he first saw the negro woman in 1810, in possession of Bryan at his house at Hazle run, in Ste: Genevieve county;- that Craig, and Bryan both-lived in-the same neighborhood ; that he knew the slaves to have continued in possession of Bryan and his family up till 1826, when he bought of T. M. Bryan; that he was often, in the course of business, in the company of George Craig, and that he never heard from Craig or any other person, that Craig had any claim on the negroes; that in 1823 or 24, T. M. Bryan,-of Philadelphia, proposed to sell the said woman and her increase to him, stating that they belonged to him, and that he had purchased them of James Bryan in his lifetime to secure a debt for goods and money borrowed of him, T. M. Bryan, some years before ; that he, S. Perry, then declined purchasing, but afterwards concluded to purchase jointly with J. F. Perry, and accordingly, in 1826, being in Philadelphia, did purchase the said slaves for himself and J. F. Perry for the sum of $1250, which he paid to T. M. Bryan in cash ; and that himself and J. F. Perry, his partner, have kept and enjoyed the slaves ever since. The-hill charges James Bryan was insolvent at and before his death ; as to this, Samuel Perry says he does not know Bryan was insolvent, but thinks if be had lived a few years, he would have paid all his debts, &c., and that he never so much as heard of Craig’s claim till he was sued by Craig; that he denies all confederacy, combination, &c. T. M. Bryan answers and says, that as to- any bargain or mortgage between Craig and James Bryan, and as to any bargain relating to salt, he is entirely ignorant, and further answering says,- that James Bryan was indebted to his father, Guy Bryan, in 1812, in the sum of upwards of $2000 for money advanced to him by said Guy of Philadelphia, that in consideration of this debt, and in part payment thereof, James Bryan made a bill of sale of the slaves to him, for the sum of $1250; he then sets out various particulars relating to the debts, and says that when the slaves were sold to Perrys, the money was- passed to the credit of Guy Bryan ;
Where no time is mentioned in case of a pledge, in case jewels are pledged, then the pledgor has his lifetime to redeem in, on this condition, that the pawnee may hasten the time by request, and if the pawnor, after request, does not redeem in reasonable time thereafter, the pawnee may sell the pledge and so get his money. In all contracts or mortgages, and of all other kinds, the great point is, what the parties really mean by the agreement.
To ascertain in some instances what was meant, we must not only look at tire words, but we must look to the subject of ibe contract, as if there be a mortgage of a crop of corn in the field, or of one hundred cords of wood in the open air without shelter, and no time is mentioned for redemption, can any one in such case suppose either party expected the time of redemption would continue for the lifetime of the mortgagor ? And again, when the thing in which the redemption is to be made, is of a variable price; thus, when the redemption is to be made in bank stock and at a certain value, and no time is mentioned, the mortgagor ought to redeem while the stock is at a fair value; so where the redemption is to be made, in salt at a price fixed, or any other article which at one time may be marketable and at another time not so. If this reasoning be correct, Craig’s claim to redeem at any time in salt is so unreasonable, that we can scarcely believe it to be true that it was expected by him or Bryan, that Craig had his lifetime to redeem in. Craig mortgaged to Bryan a young negro woman with her first child. It must have been fori seen by both, that if Craig might have twenty or even thirty years, that to give him his lifetime to redeem in, would throw on Bryan an enormous burden, a burden to raise a family of slaves for Craig ,at his expense and risk, without any advantage equal to the undertaking. It would turn him into a slave hirer, when it may be he would not at all be willing tobe a hirer to the extent he is made such in this case. If the question had been propounded to either at the time of making the mortgage, do you mean this, the answer would,.bave been, no. But in answer to this, it is said Bryan might have hastened by demanding redemption; suppose he had done so, and Craig had still neglected, what could Bryan do ? He could not have foreclosed the equity of redemption under the statute, as will be seen by the case of O’Fallon v. Elliott, administrator of Hanly, decided by this Court. There the Court decide the statute would not apply, and they know of no legal remedy to foreclose the equity of redemptien of a chattel at common law. Whether the equity of redemption could be foreclosed in Chancery, or whether, when the time is passed, the estate in a chattel is indefeasible, has not yet been settled. In New York the doctrine is, redemption may he allowed. In this State there has been no decision, and many have doubted. But suppose Craig could redeem after the time for redeeming had elapsed; the question is, what was that time? We think enough is shown to satisfy any one, that
Courts of Equity have, in England, and in the United States too, allowed the time fixed by law, in which a right must be pursued, to furnish a bar in equity when the party comes there for redress. Thus, in ejectment, the right of bringing that action in' England was twenty years; so a claim in equity regarding that land, must be prosecuted in equity within twenty years. The first case cited by the appellant, shows what is the rule with regard to mortgages of land, i. e., Cases abridged, 333; there the rule is laid down to be, that equity would not relieve mortgagors after twenty years, for the statute of limitations held it reasonable to limit .e me of one’s entry to that number of years ; and it is farther said, though there is no time limited for redemption of mortgages, yet Courts of Equity discourage the stirring old and dormant claims. In 1 Powel on Mortgages 360-1, the rule is laid down to be, that twenty year’s possession on the part of the mortgagee, and no disability on the part of the mortgagor, is prima fade a bar to the right of redemption. In the case of Demarest et ux v. Wynkoop, 3 John. c. r. 129, it was holden that twenty year’s possession by a mortgagee, is a bar to all equity of redemption. In 6 Peters’ Reports 61, in the case of Miller’s heirs et al v. McIntyre, the Supreme Court of the United States decide, that the Court in Kentucky and elsewhere, by analogy, apply the statute of limitations in chancery to bar an equitable right when at law it would be barred. The statute operates when the titles are adverse in their origin, and no reason is perceived why this rule should not he applied in equity. By these authorities it is clear enough that the rule in equity is that when the mortgagee or person to whom the land or chattel was mortgaged has had the thing so long that no action at law could he brought against him by reason that the statute of limitations would bar
It is a rule as old as Courts of Equity, that negligence and lapse of time will form objections to a complainant’s right in all cases ; no matter whether founded on a mortgage, equity of redemption, or other matters of equity. On the part of Craig, we are referred to several authorities to controvert the doctrine attempted to be raised against him, 1 Wash. R. 17, Ross v. Norvell, and a late decision of the Court of Appeal of Kentucky, 7 J. ch. R. 113, 125; 3 do. 216. The case of Ross v. Norvell, 1 Wash. R., appears to be a case of this sort. The complainant on the 5th April, 1779, filed his bill praying to redeem certain negroes which had been mortgaged in 1765, to secure the payment of a debt due by him ; the slaves were conveyed by an absolute bill of sale in June 1765, with a warranty, and a receipt for the consideration stated in the deed, was written on the back of the deed; the bill says, the deed though absolute on the face, was only a security, and that it was verbally agreed that the plaintiff might redeem at any time. The answer insists the sale was absolute, and was intended as a satisfaction of a prior debt j as to the evidence there was some contrariety. The Chancellor decreed the redemption. It was, among other things, objected, on the hearing of an appeal taken, that time, in this case, formed a bar to the redemption. The Court say in the case, that the time allowed for bringing an action of detinue in that case was not barred by the statute; they then go into a computation to show how much time had elapsed. The Court in the case are,.of opinion, that the ground on which the bar in equity arises, is not justly put on the analogy to the statute of limitations ; but on the presumption that arises from lime and negligence ; this is said by way of argument, as the Court had already decided the time for bringing the action of detinue had not expired, and they 'deny that the statute of limitations furnishes the true rule. The Supreme Court of the U. S. in the case of Miller’s heirs et al v. McIntyre et al, 6 Peters’ Reports 61, entertain a different opinion. The case of Kane v. Bloodgood, 1 J. ch. R. 111, is cited to show that technical trust created by equity, are not within the statute of limitations. The cases put by Chancellor Kent are cases which, he says, cannot be sustained by modern decisions. One case is, where money has been received in such manner that an account would be necessary; in that case, he who receives the money is a trustee in equity for the person whose money has been received. Chancellor Kent says, according to this, every person who receives money to another use, is put out of the protection of the statute, if the parly elects to sue him in chancery instead of suing at law; the case goes- on to say in page 113, the first case that gave any thing like precision to the definition of a trust not within the statute of limitations, was that of Lackey v. Lackey, (Rec. in Chan. 518,) that was an account for the profits of an estate received while the plaintiff was an infant, and a bill was not filed until six years after he came of age. The Lord Chancellor Macclesfield was clearly of opinion, “ that when one receives the profits of an infant’s estate, and six years after coming of age, he brings a bill for an account, the statute of limitations was a bar to such suit, as it would be to an action of account at common law'. The case then goes on to laydown the rule to be, that whenever the party, would be barred at law if he brought his action there for the same thing for which he sues in equity, he is also barred in chancery. 3 Johnson 'Chan. 216, has been cited to show the statute cannot apply in this case; there we find it said by Chancellor Kent, that no time will bar where there is a direct trust, as between the trustee and cestui que trust; and accordingly he cites a case,
The fact of poverty has never yet been allowed as an excuse why a party should not sue in time. Let us look into the truth of this argument; we have said the statute began to run on Craig in 1814, July 10th. Detinue then as an action, had no limitation ; in 1818 it was limited to five years; then at any rate, if not before, the statute began to run on Craig ; in 1823 the time was out. In 1823, it is believed by us that from the testimony as to the age and value of Dick, the child mortgaged, he was worth the balance of the money due in 1822. When the time was about to close on Craig -forever, Dick was 12 or 13 years of age. Craigmight then have sold him, or him andanother child, to pay the balance of the mortgage, and have redeemed the balance of the slaves. He seems never to have thought of this resource which was most obvious, especially to a man whose other resources were said to be straitened. The circumstance that he made no attempt to do so, and also the circumstance that in 1817, he left that part of the country entirely, furnishes strong arguments in favor of the usefulness of the statute of limitations which proceeds on the ground that within the time fixed for bringing suits, a case may well be supposed to be settled and the witnesses dead, who could testify as to the settlement. Craig stands in this condition ; his equity of redemption is supposed to have been extinguished if he ever had any, and the length of time is supposed to have swept off the witnesses who could have proved it, and he cannot now be permitted to disturb the present possessors of the property-. Time began to run against Craig in 1S18 at all events, and it is a rule that when time begins to run on a man’s right, it sweeps on regardless of the death of the claimant or the person against whom the claim is. According to this view of the subject, the decree of the Circuit Court must be reversed, &c.