Demarest V. Wynkoop

3 Johnson's Chancery (N. Y.), 129. - 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 twenty-seven years before the filing of the bill.

Several objections have been taken to the suit.

1. The length of possession is set up, and relied upon, in the answer, as a bar to the claim.

It is a well-settled rule, that twenty years' possession, by the mortgagee, without account or acknowledgment of any subsisting 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, femes coverts, etc., if they bring their action within ten years after their disability removed. The analogy between the right to redeem in this court, and the right of entry at law, is presumed complete and entire throughout, so that the mortgagor who comes to redeem, after the twenty years, must show himself within one of the exceptions that would save his entry or ejectment at law; and he must, likewise, show that he had filed his bill within ten 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 and necessary rule; and the construction of the statute is the same here as at law. The same limitations are adopted, with the allowance of the same time for disabilities. Jenner v. Tracey, note to 3 P. Wms. 287; Belch v. Harvey, lb. and in app. No. 12 to Sugden's Law of Vendors, 3d ed.; Lord Kenyon in Bonny v. Rid-gard, 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. Postlethwaite, Cooper's Eq. Rep. 161; Bairon v. Martin, Id. 189; Moor v. Cable, 1 Johns. Ch. Rep. 385.

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 till 1815, so that not only the twenty years had elapsed since the mortgagee's possession, but the ten 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 twenty full years, free of disability, to redeem, but she has had ten years free of disability, and more than twenty years in the whole have elapsed, and this is all that the statute allows. For this purpose I 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 a sound construction of the statute of limitations. The party has in every event twenty years to make his entry; and if under disability during any part of that time he has ten years and no more after the disability ceases. It may so happen that the twenty years, and more, will elapse during the disability, and then ten years will be afterwards allowed cumulatively; or the disability may cease, so far within the period of the twenty years, as to allow of only twenty years in the whole, though part of that period be covered by the disability. This construction does not give to persons laboring 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 statute, 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 twenty-seven years, and above eight of the first years of that time had been consumed by an acknowledged disability; 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 decree, his opinion would have been, that after the disability of infancy was removed, the time fixed for prosecuting, 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 that there is great reason that it should. The persons who are the subjects 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 allowed 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? "