himself out of the profits.

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 recognition 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.

2 Marks v. Pell, ante. Acknowledg. 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, 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, 6 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

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 Sumner (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.

66

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

6

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.

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.

3 Wilson v. Richards, 1 Neb. 342.

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