McNair v. Lot

Dryden, Judge, delivered the opinion of the court. The defence that prevailed in this case in the court below was limitation.- And in the view we take of the case it will be unnecessary for us to pass upon the question of the validity of the paper title originating in the sheriff’s sale to Papin, and relied upon by the defendants, which was held by the lower court to be invalid. The court, in its finding of the facts, found that the defendants and those under whom they claim had had a continuous adverse possession of the land in dispute, \inder an exclusive claim of title, for more than twenty-seven years next before the commencement of the suit, and declared the law to be that the plaintiffs, by reason of such adverse possession, were barred of their action. The only matter about which there was any serious dispute was as to what were the facts in the case. That question has been settled by the finding of the court— settled, as we think, in conformity with the evidence. To show a recognition of the existence of the mortgage by the mortgagees as an encumbrance on the property, within twenty years next prior to the commencement of the suit, and thus defeat the plea of the statute of limitations, the plaintiffs averred and attempted to prove that in December, [301] 1836, Delassus, the mortgagor, paid, and Papin, as executor of Duchouquette, accepted payment of the entire mortgage debt and interest, on and in discharge of the mortgage ; but the court negatived this averment by finding that the payment made was not of the entire debt and interest, but of so much only of it as remained after deducting the net proceeds of the sale of the mortgaged lands ; and not on or in discharge of the mortgage, but on and in discharge only of the balance of the debt and interest that remained after the application of the mortgage sales. Then, according to the finding of the court, sustained too by the evidence, the defendants and those under whom they claim had been in the peaceable and undisputed possession of the mortgaged premises, claiming as their own, without any recognition of the mortgage as an existing encumbrance for more than twenty-seven years before suit brought. The facts being thus settled, there can be no reasonable doubt as to the law arising upon them. In the great case of Marquis Cholmondeley v. Lord Clinton, 2 Jac. & Walk. 187, Sir Thomas Plumer, Master of the Rolls, in delivering the opinion of the court, says: “ Actual possession of the mortgagee continued for twenty years without any payment of interest by the mortgagor, or anything done or said during that period to recognize the existence of the mortgage, or to acknowledge it on the part of the mortgagee, would clearly operate as a bar to redemption by the mortgagor. This has been so long and so clearly settled that it would be an useless waste of time to refer to the authorities upon so well known a subject. * * * * Possession in the mortgagee must at its commencement have been taken, under the engagement which equity always implies, to account as a baliff for the rents and profits with the mortgagor, and to apply them to the discharge of the mortgage debt. If this be not punctually and regularly done, and the account fairly and properly kept by the mortgagee, it is a violation of the implied engagement under which he holds the possession. The possession is all along [302] consistent with the equitable title of tho mortgagor, who maybe disabled by poverty and distress to enforce the account and redemption. Yet such is the prevalence of analogy in equity, that even under such circumstances the possession of the mortgagee for twenty years, without a recognition of the mortgage title, or any account kept upon the footing of it, becomes a subject of equitable bar to redemption, notwithstanding a clear title to redemption in the one party, and on the other side a continued misapplication of the rents and profits of the estate committed to his care, contrary to his engagement, and a continued breach of duty from the beginning to tlic end of the period, in omitting to keep the account.” In a suit to redeem a mortgage, Demarest v. Wynkoop, 3 John. Ch. 135, Mr. Chancellor Kent said: “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.” To the same effect in Elmendorf v. Taylor, 10 Wheat. 152. See, also, Ang. on Lim. 504, 505, § 21. Thus stands the law in cases directly between mortgagor and mortgagee, where it is seen the possession of the mortgagee with the bare omission to recognize the existence of the mortgage for the period of time which, by the statute of limitations, would be required to bar a legal title, is a bar to the equity of redemption. But with how much more force' does the rule that bars the mortgagor as between him and the mortgagee, apply to a case like the one at bar, where tho possession is by a stranger, and is from the beginning, and continues to be, hostile to the title of the mortgagor. In the language of the Master of the Rolls in the case already cited, (2 Jac. & Walk. 188, 189,) a case strongly resembling this in some of its features : “ The possession is taken adversely, under no contract express or implied, by a stranger, between whom and the person wrongfully kept out of possession there is [303] no privity or engagement of any kind, who is under no obligation to render any account, whose possession is from the first inconsistent with, and therefore adverse to the title of the rightful mortgagor. Surely, upon every principle of reason and equity, the same analogy to the statute of limitations which prevails in the one case” (the case of mortgagor agaiust mortgagee) “ must a fortiori prevail in the other,” or the case of mortgagor against a stranger holding adversely. In the case of Cholmondeley v. Clinton, on appeal to the House of Lords, (2 Jac. & Walk. 191,) the Lord High Chancellor, Eldon, concluded his opinion by stating, “ that adverse possession of an equity of redemption for twenty-years was a bar to another person claiming the same equity of redemption, and worked the same effect as disseisin, ábatement or intrusion, with i'espect to legal 'estates; and that for the quiet and peace of titles and the world, it ought to have the same effect.” In our opinion the Circuit Court committed no error, and its judgment is therefore affirmed. Judge Bates concurs, Judge Bay not sitting in the case.