Opinion
(June Term, 1830.)
1. On the hearing of an original bill, in the nature of a supplemental bill and bill of revivor, depositions taken in the original suit may be read.
2. In equity, upon a bill by the mortgagor to redeem, he shall have relief, though at law the estate of the mortgagee is barred; as upon a disseizin, and seven years possession with color of title.
From WILKES. This cause was a branch of that of the same plaintiffs against William Lenoir, ante, 225. It set forth the same title and the same facts. The two infant children of Montgomery, who pending the former suit had married, were, with their husbands, Montfort Stokes and James Wellborn, made plaintiffs. The defendants claimed under Mary Gordon, who was a defendant to the original suit, as to whom it had abated. The present bill prayed a revivor as to those claiming under Mary Gordon, and in other respects the same relief as that sought by the original bill.
Seawell and Gaston for plaintiffs.
Badger for defendants.
The only additional fact appearing on the pleadings in this case was that upon payment of the mortgage debt due the Unitas Fratrum, the residue of the term created by the deed of Hugh Montgomery, of 23 July, 1778, to John Michael Graff, had been assigned to John Brown, the younger, the executor of John Brown, the elder, the surviving trustee and executor of Montgomery.
The lands in question were part of a tract originally granted to Henry Cossart, from whom they descended to Christian Frederic Cossart, his son and heir at law. He, in 1772, made a power of attorney to Frederick W. Marshall, either to sell the lands himself or to appoint some other person attorney in fact for that purpose. The said Frederick W. Marshall did not sell or dispose of the lands, but nominated and appointed John Michael Graff attorney in fact of the said Cossart, in 1774, with general powers, as he was authorized to do. The said Graff, in 1778, sold the said lands, as the agent of the said Cossart, to Hugh Montgomery, for £ 2,500. In the same year Hugh Montgomery mortgaged the same lands, for the term of five hundred years, to the said Graff, to secure the debt to him as agent of the Unitas Fratrum; he died, and Fragott Bagge became his administrator, and in 1784 assigned the said term to F. W. Marshall, agent of the Unitas Fratrum. He devised the lands to Christian L. Benzein; he died, and the mortgage term came to the plaintiffs, his executors.
It further appears that Hugh Montgomery conveyed the land in question, after the date of the mortgage, to John Brown and others, trustees, for the benefit of his two female infant children, since married to Montfort Stokes and James Wellborn, who are also plaintiffs.
The defendants claim under grants issued by the State for the same lands, but bearing date posterior to the deed executed to Montgomery, and posterior to the deed of mortgage given by him, before noticed.
It appears that Mary Gordon was sued for these lands in the original suit spoken of in the bill, but that the suit, as to her, abated by her death, and was not revived as to those who claim under her. The present bill is brought against such persons; and considering it (446) to be an original bill, in the nature of a supplemental bill, and bill of revivor, I think it is not improper to read the depositions taken in the original suit; though, in the view I take of the case, I shall make no use of them.
The defendants allege that the plaintiffs have no grounds for coming in to a court of equity; that if they have any right to the lands in question, they should assert it at law. In the former suit I attempted to give the reason why a suit had not been brought at law. (Ante, 263.) But it may be assumed that the mortgagee might have brought a suit at law, and has failed to do so; and that the legal title being in him, he is the only person who could bring such suit; and that not having brought such suit, he is barred by the statute of limitations. It does not follow, of course, that the rights of the mortgagor are concluded by the same bar. He has twenty years to redeem, or as long as the mortgage is recognized by those concerned. 5 Bac. Abr., 94.
I have no inclination either to repeat or unsay what appeared to me, in the former suit, to be the correct principle of decision. I will only add to it a few remarks.
It is argued for the defendants that they have had a seven years actual adverse possession under a color of title — a grant from the State. That may be true, and still their title is not good. It is not true, as a universal proposition, that such a possession gives a title. It only gives title, in the words of the act, against such persons whose rights or title shall descend or accrue. Thus, if an estate is made upon condition that the feoffor shall reenter, provided he pays or tenders a certain sum of money on a certain day, twenty or thirty years afterwards: if the money shall be paid or tendered on the day, he may enter and regain his estate. In this case the feoffee might be in possession twenty or thirty years, (447) but it would not give him a fee simple. So if there is a tenant for life, remainder in fee, and tenant for life makes a feoffment in fee, the remainderman may presently enter for the forfeiture. But if he does not enter for seven or twenty years, provided the tenant for life lives so long, he may afterwards, upon the death of the tenant for life, enter by virtue of his remainder, which has fallen into possession. 5 Bac. Abr., 830. Yet the feoffee of tenant for life, although peaceably possessed during the life of tenant for life, acquires no fee simple, because the right of the remainderman had not accrued during that time.
Again, and which is more in point, if a man disseises a mortgagee, and levies a fine, and five years pass over the proclamations by which the mortgagee is bound, yet if the mortgagor pay or tender the money due on the mortgage, he has five years to prosecute his right by the second saving of the statute of 4 Hen. VII, ch. 24; because his title did not accrue till payment or tender of the money, by condition made upon cause, or matter before the proclamations, viz., by condition made upon before the fine. Plow., 373. In this case we see a person holding an estate in the post, altogether unconnected in privity with the mortgagee, nay, holding an estate under a fine levied by the disseisor of the mortgagee, obliged to yield his title to the mortgagor when the time comes, be it long or short, when the money becomes due according to the condition in the mortgage. It is true, if the money was not paid at the day, according to the condition, the estate became absolute at law. Co. Lit., 221, 222. But courts of equity consider the mortgagor to be the owner of the land, which is only a pledge for the money lent, and will sustain the right of redemption in the mortgagor against the same persons from whom the estate might have been wrested at law in case the money had been strictly and legally paid or tendered according to the condition. Hard. 465, Co. Lit. 35, Note z. It would seem to make but little difference with the possessor of the land, claiming against the (448) mortgagee, if he must be disturbed, whether it is by the mortgagee or by the mortgagor. There is this difference: the mortgagee can only sue at law, and that within seven years. The mortgagor, generally speaking, has twenty years, or in some cases longer, if the mortgage shall be recognized as such by the parties. Thom. Co. Lit., 41, Note z. In the present case the existence of the mortgage is acknowledged by the parties, and must be admitted by all.
But it is stated in the bill that the remainder of the mortgage term has been surrendered to John Brown, the younger, in consequence of the money being paid which was due on it; and it is insisted for the defendant that John Brown has a remedy at law. It may be answered that if there is an end of the mortgage, it is of very recent date before the filing of the present bill; that John Brown has not thought proper to sue, and that the plaintiffs have no remedy at law; that although the mortgage is now extinct, it stood in the way until very lately, and prevented a suit at law; that the legal right to the land is now in John Brown, the younger, and that a beneficial trust was created in the plaintiffs, under the deed of Hugh Montgomery made to John Brown, the elder, and others, trustees, etc., and also under the will of said Montgomery; that since the mortgage term has become extinct, no time has elapsed that will impair the equitable rights of the plaintiffs or interpose an obstacle to redress for it in this Court against those trustees, and also against the other defendants. I therefore think the female plaintiffs are entitled to a decree, to be based upon the deed from Montgomery to John Brown and others, trustees, and also upon Montgomery's will.
PER CURIAM. Decree accordingly.
(449)