Rockwell v. Servant

Mr. Justice Walker delivered the opinion of the Court: It was agreed on the trial below that Justus T. Rockwell died intestate on the 20th day of August, 1844, in possession of the premises in controversy, and that he was the owner of the same subject to a mortgage executed by him to Elisha Seymour. It was given to secure the payment of a note for §98.30, dated on the 10th day of September, 1843, due on the 10th day of September, 1845, and drew ten per cent interest. The mortgage was duly recorded. Seth Allen was appointed administrator of Rockwell’s estate on the 2d day of September, 1845, and was served with a writ of scire facias, which was sued out by Seymour to foreclose the mortgage. A judgment for the sale of the premises was rendered on the 23d day of September, 1845. A special execution was issued and placed in the hands of the sheriff, who, on the 19th day of December, 1845, sold the land to Elisha Seymour. The premises were not redeemed, and the sheriff, on the 6th day of August, 1847, conveyed the same to the purchaser at the sale. Appellees introduced deeds showing a chain of title from Seymour to Ann E. Servant. Appellants relied upon the statute of limitations by possession by themselves and those from whom they derive title for more than twenty years, before this suit was brought. It appears the widow and heirs of Rockwell have remained in possession by themselves or tenants to the time of the trial in the court below. There was some contrariety in the evidence as to whether or not Eord, who had married the widow of Rockwell, had not recognized Servant as his landlord a portion of the time he resided on and cultivated the premises. It is urged that, if that was true, Ford had no right to recognize the title of Servant, so as to change his possession from that of the widow and heirs to that of Servant. We will not stop to inquire Avhether the evidence establishes that Ford was the tenant of Servant, nor Avill avb discuss the effect of that question in determining the case, as we think it turns upon other grounds. As long as the relation of mortgagor and mortgagee existed betAveen Seymour and Rockwell in his lifetime, and his heirs after his death, the statute could not run to bar the action. During the continuance of that relation, neither party in possession can interpose the statute of limitations as a defense against the other. It, then, can only commence to run after that relation has been terminated in some one of the modes known to the law. . In this case the suit was commenced bv service on 14th day of November, 1866, something more than twenty-one years after the judgment on the scire facias was rendered, and almost twenty-one years after the land was sold on the execution. The time within which the land could have been redeemed, and when Seymour was first entitled to his deed, was on the 19th day of March, 1847. Thus it will be seen that, from the time Seymour could have had his deed, until this suit was brought, was nineteen years and almost eight months. And from the date of the expiration of the year allowed for a redemption by the heirs until the suit was commenced, lacks something more than a month of being twenty years. Did the mere recovery of the judgment on the scire facias extinguish the relation of mortgagor and mortgagee? "We think not. Whilst it may have made some changes in their respective rights, it must be conceded that the most essential and important continued. The money was still due the mortgagee, and he still retained unimpaired his lien on the premises, not only subject, but ordered, to be sold for its payment. Neither the note nor mortgage was satisfied or discharged, but both remained in full force. On the other hand, the representative and heirs of Rockwell had the undisputed right to redeem after the judgment was rendered, and that right continued for one year after the sale was made. The heirs in possession were not liable for use and occupation, or to account for rents and profits, until Seymour was entitled to his deed. And had the latter been and remained in possession after the rendition of the judgment, he would have been bound to account for rents and profits until the time for redemption had expired, precisely as though he had been in possession as mortgagee, and there had been no judgment rendered. Thus it will be seen that all of the important conditions of the relation continued until the time had passed for a redemption. And for that reason the statute could not begin to run until all of the rights of the mortgagor, his heirs or assigns, were foreclosed and barred. It then follows that no portion of the time which elapsed before the time for the redemption by the heirs had expired, can be counted to bar the recovery. Nor can the statute begin to run until the right of entry accrues. And in cases of this character, the purchaser can have no right of entry until he has the right to receive a deed from the sheriff. Until then he has no legal title or right to be vested with a legal title. He could not maintain ejectment or other possessory action on his certificate of purchase. It is but an inchoate right, subject to be defeated at any time until he has the legal right to demand of the sheriff a deed that will pass to him the legal title. There was not, in any point of view in which the evidence can be considered, proof of twenty years adverse possession by the heirs of Rockwell, and until it becomes adverse and hostile, it can not be computed in the time necessary to bar a recovery. Nor is there any evidence of the payment of taxes by appellants, or those under whom they claim, for seven successive years, so as to bring the case within the statute of 1839. It then follows that appellants failed to make out a defense sufficient to overcome the title shown by appellees. They both derive title from the same source, and the title inherited by the heirs was defeated by the foreclosure of the mortgage and cutting off their equity of redemption; and they having failed to show a bar to the action, appellee was entitled to recover, and the judgment of the court below must be affirmed. Judgment affirmed.