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lie; or where the mortgagee enters under an agreement to reimburse himself out of the profits. Before the statutes required acknowledg

although the remedy was given by statute, the cause of action was founded upon the obligation of the defendant's ancestor; and so it was not barred by the statute of limitations.

McC. by his will devised his real estate. By the judgment in an action brought by one of the heirs for the partition of said real estate, the devise was adjudged to be void. The plaintiff's testator brought an action against McC.'s executors, the defendants here, and others, to vacate said judgment, and for direction that the executors sell sufficient of the real estate to pay his debts. Upon demurrer the complaint therein was dismissed; and it was held that this did not sustain the defence of a former adjudication.

The defendant, S., was sued as surviv. ing trustee under the will of J., one of the heirs, who died in the State of New Jersey; her will was admitted to probate in that State; it was recorded in the office of the Surrogate of New York City and County, but not formally admitted to probate in this State. By said will, J. devised to S. and G., as trustees, her real estate in this State in trust, giving the survivor power to execute the trust. Held, that in respect to the land, the trustee was subject to the equitable jurisdiction of the courts of this State, and so properly made a party; and that a refusal to dismiss the complaint as to him was not error.

1 Perry v. Marston, 2 Bro. 397; Ross v. Norvelle, 1 Wash. (U. S. C. C.) 18; Marks v. Pell, 1 Johns. (N. Y.) Ch. 591; Whiting v. White, 2 Cox, 290. A recog nition of the mortgage incidentally in any conveyance or other instrument is sufficient. Pender v. Jones, 2 Hayw. (N. C.) 294; Price v. Cooper, 1 S. & S. 347; Hansard v. Harvey, 18 Ves. 455; Conway v. Skrimpton, ante; Ord v. Smith, Sel. Ch. Cas. 9; Hoode v. Healy, 1 V. & B. 536; Vernon v. Bethel, 2 Eden, 110; Elmen dorf v. Taylor, 10 Wheat. (U. S.) 152. In Turlock v. Roby, 12 Scott, 87, a mortgagee in possession having received from the grandfather of the infant heir of the mortgagor a letter, the contents of which

were as follows: " Concerning the business at Hendred, which you know nearly as well as myself, as there has been nothing kept from you; which I am very willing to settle if your granddaughter is of age. I never told you any otherways; as I am informed, she is heiress of what there is. The difference is not worth much. I shall hear from your granddaughter about the business," it was held that the lastmentioned letter was an acknowledgment of the heiress's right to redeem the mortgage, and that, whan she became of age, she was entitled to consider her grandfather as having acted as her agent; and, consequently, that she was entitled to redeem the mortgage at any time within twenty years, after the letter was written. In another case a mortgagee had possession sixteen years, and then assigned the mortgage and estate. The deed conveying it to the assignee recited the original mortgage in the usual manner, and it was held that this assignment was not a sufficient acknowledgment in writing to take the case out of the statute. Lucas v. Dennison, 7 Jur. 1122.

Acknowledg

2 Marks v. Pell, ante. ments by a mortgagee in possession have been held sufficient to remove the statute bar in numerous cases, as stating an account of the rents and profits of the land. Barron v. Martin, Cooper's Ch. 189; Palmer v. Jackson, 3 Bro. P. C. 194; Ley v. Peter, 3 H. & N. 101; Kalheim v. Harrison, 34 Miss. 457, or the execution of a written promise: Snaveley v. Pickle, 29 Gratt. (Va.) 27; Hall v. Felton, 105 Mass. 516; Lyon v. McDonald, 51 Mich. 435; Haywood v. Ensley, 8 Humph. (Tenn.) 460; Murphy v. Coates, Stew. Eq. (N. J.) 424; Kerndt v. Porterfield, 56 Iowa, 512; Wells v. Harter, 56 Cal. 342; Schmucker v. Sibert, 18 Kan. 104; or a deed to third persons: Cape Giradeau Co. v. Harrison, 58 Mo. 90; Randall v. Bradley, 65 Me. 43; Biddell v. Brizzolara, 56 Cal. 374; or by an acceptance of interest or a part of the principal debt: Winchester v. Ball, 54 Me. 558; Stump v. Henry, 6 Md. 201; Fisk v. Stewart, 24 Minn. 97; Pears v

ments to be in writing, it was seriously questioned whether any form of parol acknowledgment would be sufficient, and in an early case in this country,1 STORY, J., in a very able opinion, in which he carefully re

Laing, L. R. 12 Eq. 41; or by bringing a bill to foreclose, or any proceeding to enforce payment of the mortgage debt: Robinson y. Fife, 3 Ohio St. 551; Dexter v. Arnold, 1 Suinner (U. S. C. C.), 109; Erskine v. North, 14 Gratt. (Va.) 60; Giles v. Barremore, 5 Johns. Ch. (N. Y.) 545; Johnson v. Johnson, 81 Mo. 331; Cleaveland v. Harrison, 15 Wis. 870; Martin v. Bowker, 19 Vt., 526; Ricker r. Blanchard, 45 N. H. 39; and purposely absenting or concealing himself so as to prevent a tender of the amount due on the mortgage has been held sufficient: Waldo v. Rice, 14 Wis. 286. See Wallace v. Stevens, 66 Me. 190; Cunningham v. Hawkins, 24 Cal. 403.

As to the effect of mere parol admissions, see Green v. Cross, 45 N. H. 574; Cheaver v. Perley, 11 Allen (Mass.), 584; Hough v. Bailey, 32 Conn. 288; Morgan v. Morgan, 10 Ga. 297; Wimmer v. Ficklin, 14 Bush (Ky.), 193; Shepperd v. Murdock, 3 Murph. (N. C.) 218.

1 Dexter v. Arnold, 3 Sumn. (U. S. C. C.) 160. In this case the question was whether mere parol admissions or acknowledgments were sufficient to show that the mortgagee had within twenty years treated the conveyance as a mortgage. "Such admissions and acknowledgments," said STORY, J., "are certainly open to the strong objections that they are easily fabricated, and difficult, if not impossible, to be disproved in many cases; and that they have a direct tendency to shake the security of all titles under mortgages, even after a very long exclusive possession by the mortgagee." He then refers to the language of LORD ALVANLEY in Whiting v. Cox, ante, in which he so earnestly protested against the reception of such evidence in this class of cases. He also comments on the case of Perry v. Marston, 2 Bro. Ch. 357, where it has been supposed (though it is not, perhaps, certain) that LORD THURLOW thought parol evidence admissible, and sufficient to give the plaintiff a decree for redemption, but he, in fact, decided against it on another

ground. LORD ALVANLEY said: "I cannot help thinking that it would have been a very wise rule, if no parol evidence had been admitted on these subjects. It is clear that the party obtains an irredeemable interest by twenty years' possession; and then that interest is to be totally changed by this sort of loose conversation." He afterwards added: "I will not take upon myself in the present case to lay down any rule that shall contradict that authority, because it is not necessary. But, at any rate, I think the declarations must be clear and unequivocal; and, in the present case, I do not think that the evidence is of that clear and unequivocal nature as to justify the court in giving the plaintiff a redemption." "The same point," adds STORY, J., "came before the Vice-Chancellor, Sir THOMAS PLUMMER, in Reeks v. Postlethwaite, Cooper's Eq. 160; and he, after admitting that there was no case in point, upon principle, decided that parol evidence was so admissible. But, after sifting the evidence in the case, which sufficiently shows the danger of such evidence, he decided that it was not satisfactory, and refused the redemption. Then came the case of Barron v. Martin, 19 Ves. 326, where Sir WILLIAM GRANT thought the parol evidence admissible; but, at the same time, on account of its being unsatisfactory, decided against the redemption, and adhered to the rule laid down by LORD ALVANLEY, that it ought to be clear and unequivocal to justify a redemption. But there is an important remark made by this eminent judge, in the same case, which is worthy of special notice. It is now decided,' said he, that twenty years' possession by a mortgagee will, prima facie, bar a right of redemption, and it lies on the mortgagor to show that such length of possession ought not to produce that effect.' He added: "The onus lies on the mortgagor to show that fact, in order to defeat the effect of the possession.' In Marks v. Pell, 1 Johns. (N. Y.) Ch. 594, the same point came before Mr. CHANCELLOR KENT; and the only evidence relied upon in favor

viewed the cases, held that such an acknowledgment or admission would not be sufficient.1

If the

SEC. 236. Absolute Conveyances, but in fact Mortgages. parties to an instrument, at the time of its execution, intend it as a security, whatever may be its form, equity will consider it a mortgage, and no terms or words used in it will be allowed to change its character, and cut off the right of redemption; 2 and this is the case even though the conveyance on its face is absolute, and there is nothing to indicate that it was intended as a security for a loan or a pre-existing debt; 3

of the redemption was certain naked, unassisted confessions of the mortgagee, stated by witnesses. The learned judge decided, upon a review of the evidence, that the redemption ought not, under all the circumstances, to be allowed; for, it would be setting up a dangerous precedent, to give effect to a stale claim, upon such uncorroborated and loose confessions.' In delivering his opinion, he said: 'It was once observed, in the Supreme Court, 6 Johns. (N. Y. ) 21, that acknowledgments of the party, as to title to real property, are a dangerous species of evidence; and, though good to support a tenancy, or to satisfy doubts in cases of possession, they ought not to be received as evidence of title, as it would counteract the beneficial purposes of the statute of frauds. That doctrine strikes me as just and sound; and principles are essentially the same in both courts.' From this language, I cannot but infer that the learned Chancellor was against the admissibility of the evidence, though he did not deem it necessary to decide the case on that point. His very able reporter, Mr. JOHNSON, has supposed differently in his marginal note of the case; but I have been unable so to read the case. I have not, in my researches, found any other cases upon the point. And, what is very remarkable, there is no instance of a decree being made upon such parol evidence in favor of the party seeking to redeem. In the present case I am spared the necessity of deciding the general principle; for, admitting that parol evidence is admissible (which I am by no means prepared to decide, and I wish to reserve for further consideration), I am of opinion that the parol evidence of the confessions and conversations of the mortgagee, testified to by the witnesses, is wholly unsatisfactory, too loose, and too

equivocal, and too infirm in its reach and bearing and circumstances, to justify any decree in favor of a redemption."

1 See also Whiting v. White, 2 Cox, 290. 2 Robinson v. Farrelly, 16 Ala. 472; Richardson v. Barrick, 16 Iowa, 407; Howe v. Russell, 36 Me. 115; Artz v. Grove, 21 Md. 456; Bank of Westminster v. Whyte, 1 Md. Ch. 536; Parks v. Hall, 2 Pick. (Mass.) 211; Steel v. Steel, 4 Allen (Mass.), 417; Vasser v. Vasser, 23 Miss. 378; Davis v. Clay, 2 Mo. 161; Wilson v. Drumrite, 21 Mo. 325; Somersworth v. Roberts, 38 N. H. 22; De Camp v. Crane, 19 N. J. Eq. 166; Holliday v. Arthur, 25 Iowa, 19; Phoenix v. Gardner, 13 Minn. 430; Bingham v. Thompson, 4 Nev. 224; Cotterell v. Long, 20 Ohio, 464; Miami, &c. Co. v. United States Bank, Wright (Ohio), 249; Pattison v. Horn, 1 Grant (Penn.) Cas. 301, 304; Halo v. Schick, 57 Penn. St. 320; Nichols v. Reynolds, 1 R. I. 30; Bennett v. Union Bank, 5 Humph. (Tenn.) 612; McCan v. Marshall, 7 id. 121; Webb v. Patterson, id. 431; Hinson v. Partee, 11 id. 587; Yarborough v. Newell, 10 Yerg. (Tenn.) 376; Delahay v. McConnell, 5 Ill. 156; Nichols v. Cabe, 3 Head (Tenn.), 92; Nickson v. Toney, id. 655; Yates v. Yates, 21 Wis. 473; Catlin v. Chittenden, Brayt. (Vt.) 163; Campbell v. Worthington, 6 Vt. 448; Mott v. Harrington, 12 id. 119; Wright v. Bates, 13 id. 341; Rogan v. Walker, 1 Wis. 527.

8 Kellum v. Smith, 33 Penn. St. 158; Holmes v. Grant, 8 Paige (N. Y.) Ch. 243; Parmalee v. Lawrence, 44 Ill. 405; Baxter v. Deas, 24 Tex. 17; Mills v. Darling, 43 Me. 565; Crossen v. Loveland, 22 Ind. 427; Barkelew v. Taylor, 8 N. J. Eq. 206; Chaines v. Brady, 10 Fla. 133.

and parol evidence is admissible to show that it was intended as a mortgage, or that the defeasance was omitted by fraud or mistake." Upon this class of mortgages it has been held that the statute does not begin to run until a tender of the money which it was given to secure, and a refusal to reconvey. But there is no question but that a court of equity would refuse to enforce a right to redeem, where the grantee had slept upon his rights until his claim had become stale.

1 Babcock v. Wyman, 19 How. (U. S.) 289; Rogan v. Walker, 1 Wis. 527; Bishop v. Bishop, 13 Ala. 475; Bryan v. Cowart, 21 Ala. 92; Blakemore v. Byrnside, 7 Ark. 505; Jordon v. Fenno, 13 Ark. 593; Pierce v. Robinson, 13 Cal. 116; Jones v. Jones, 1 Head (Tenn.), 105; Guinn v. Locke, id. 110; People v. Irwin, 14 Cal. 428; Johnson v. Sherman, 15 Cal. 287; Cunningham v. Hawkins, 27 Cal. 603; Hopper v. Jones, 29 Cal. 18; Trucks v. Lindsey, 18 Iowa, 504; Jackson v. Lodge, 36 Cal. 28; Washburn v. Merrill, 1 Day (Conn.), 139; Marks v. Pell, 1 Johns. (N. Y.) Ch. 594; Collins v. Tillon, 26 Conn. 368; Hovey v. Holcomb, 11 Ill. 660; Shaver v. Woodward, 28 Ill. 277; Roberts v. McMahan, 4 Greene (Iowa), 34; Green v. Ball, 4 Bush (Ky.), 586; Whitney v. Batchelder, 32 Me. 313; Emerson v. Atwater, 7 Mich. 12; Johnson v. Huston, 17 Mo. 58; Carlyon v. Lannan, 4 Nev. 156; Condit v. Tichenor, 19 N. J. Eq. 43; Crane v. Buchanan, 29 Ind. 570; Key v. McCleary, 25 Iowa, 191; Phoenix v. Gardner, 13 Minn. 430; Bingham v. Thompson, 4 Nev. 224; Walton v. Cronly, 14 Wend. (N. Y.) 63; Swart v. Service, 21 id. 36; Webb v. Rice, 1 Hill (N. Y.), 606; Hodges v. Tennessee, &c. Ins. Co., 8 N. Y. (4 Seld.) 416; Kimborough v. Smith, 2 Dev. (N. C.) Eq. 558; Couch v. Sutton, 1 Grant (Penn.) Cas. 114; Patterson v. Horn, id. 301, 304; Stamper v. Johnson, 3 Tex. 1; Mead v. Randolph, 8 Tex. 191; Hannay v. Thompson, 14 Tex. 142; Mann v. Falcon, 25 Tex.

271; Plato v. Roe, 14 Wis. 453. See Fitzpatrick v. Smith, 1 Desau. (S. C.) 340. To the contrary, Hale v. Jewell, 7 Me. 435; Bryant v. Crosby, 36 id. 562; Watson v. Dickens, 20 Miss. 608.

2 Taylor v. Luther, 2 Sumn. (U. S. C. C.) 228; Morris v. Nixon, 1 How. 118; Slee v. Manhattan Company, 1 Paige (N.Y.) Ch. 48; Whitrick v. Kane, 1 id. 202; Van Buren v. Olmstead, 5 id. 1; Strong v. Stewart, 4 Johns. (N. Y.) Ch. 167; Ross v. Norvell, 1 Wash. Va. 14; Anon., 2 Hayw. (N. C.) 26; McLaurin v. Wright, 2 Ired. (N. C.) Eq. 94; Hudson v. Isbell, 5 Stew. & P. (Ala.) 67; English v. Lane, 1 Port. (Ala.) 328; Craft v. Bullard, 14 Miss. Ch. 366; Murphy v. Trigg, 1 T. B. Mon. (Ky.) 72; Lewis v. Robards, 3 id. 406; Lindley v. Sharp, 7 id. 248; Overton v. Bigelow, 3 Yerg. (Tenn.) 513; Miami Exporting Co. v. United States Bank, Wright (Ohio), 249; Blair v. Bass, 4 Blackf. (Ind.) 539; Delahay v. McConnel 5 Ill. 156; Wadsworth v. Loranger, Harr. (Mich.) 113; Lane v. Dickerson, 10 Yerg. (Tenn.) 373; Conwell v. Evill, 4 Blackf. (Ind.) 67; Scott v. Britton, 2 Yerg. (Tenn.) 215; May v. Eastin, 2 Port. (Ala.) 414; Aborn v. Burnett, 2 Blackf. (Ind.) 101; Bank of Westminster v. Whyte, 1 Md. Ch. 536; Lokerson v. Stillwell, 13 N. J. Eq. 357. To the contrary, Streater v. Jones, 1 Murph. (N. C.) 449; Thompson v. Patton, 5 Litt. (Ky.) 74.

8 Wilson v. Richards, 1 Neb. 342.

VOL. II.- -7

CHAPTER XIX.

DISABILITIES IN PERSONAL ACTIONS.

SEC. 237. Saving Clauses in Statutes in SEC. 245. What constitutes an Absence

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SEC. 237. Saving Clauses in Statutes in Favor of Plaintiffs. — In the seventh section of the statute of James it is provided that, if at the time when a cause of action accrued any person entitled to bring the same shall be within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or without the limits of the United States, such person shall be at liberty to bring the same actions within the times limited by the statute after his disability has terminated; and substantially the same provision is incorporated into the statutes of most of the States. In Maine, the same exceptions are made; 1 so, also, in Vermont, except that the exception as to imprisoned persons and persons beyond seas does not exist, and the word "insane" is substituted for non compos mentis; and the statute of this State also contains all the additional exceptions

1 Appendix, Maine, § 88. In Maine, additional exceptions exist, as in the case of the death of a claimant before the statute has run against his claim, or within thirty days after it has run, an action may be commenced at any time within two years after administration or letters testamentary have been granted, and this saving applies to actions in favor of and against the estate. Sec. 88. So also, by sec. 89, an exception exists in favor of a person who is an alien subject of a country at war with the United States, and the time of the continuance of such war is not to be deemed any part of the time limited for

2

the bringing of any of the actions enumer
ated in the preceding sections. By sec. 99
an exception is made in cases where, at the
time when any cause of action shall accrue
against a person, "he shall be out of the
State," the action may be commenced
within the time limited therefor after such
person shall come into the State, and if
after any cause of action has accrued the
person against whom it shall have accrued
shall be absent from and reside without
the State, the time of such absence shall
not be taken as any part of the time lim
ited for the commencement of the action.
2 Appendix, Vermont.

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