Fogal a. Pirro.

ment for the possession, during their father's life. (Jackson a. Schoonmaker, 4 Johns., 390; Jackson a. Minkler, 10 Zb., 480; Adair a. Lott, 3 Hill, 182.) Where the wife became entitled to the premises as heir at law, during coverture, and the husband conveyed his life estate therein, and his grantee continued in possession for more than thirty years, the husband still living, she may, after the decease of her husband, make an entry and recover the land. (Mellus a. Snowman, 8 Shipl., 201.)

It appeared to me, at the trial, to be equally clear that equity in this case followed the law, and that a bill to redeem could not be brought by the children of Catharine, entitled in remainder, until the death of the father.

But upon examining the authorities, this is by no means clear. At any rate, there is a distinction of no little moment.

I refer to the case of Raffety a. King (1 Keen, 601), in which all the previous cases are carefully examined by the Master of the Rolls. There a piece of land was vested, by devise of her husband, in Mary, wife of John Dean, for her natural life or widowhood; and upon her death or marriage, in Vesey Raffety and his heirs, in trust, to sell and apply the proceeds among the testator's children. The property was subject to a mortgage term; and after the testator's death, the widow and trustee united in conveying the land in fee to the mortgagee, for the mortgage debt, and a further sum of money. Manning, the mortgagee, then entered upon the land in 1796, and he and persons under him had continued in possession until the commencement of the suit. Mary, the widow, died in 1832. Before 1836, the children of the testator filed a bill to declare the mortgage discharged, and have a reconveyance; or to redeem, if the mortgage was a subsisting charge. It had been assigned to a trustee to attend the inheritance, at the time of the conveyance, in 1796.

It was held, that when a mortgagee enters in possession in his character of mortgagee alone, or by virtue of his mortgage alone, he is for the period of twenty years liable to account, and is a trustee for the mortgagor; but if the mortgagor permits the mortgagee to hold for twenty years, he loses his right of redemption, and the title of the mortgagee becomes absolute in equity. In such a case, the time runs against the mortgagor from the moment of taking possession by the mortgagee; and contin

Fogal a. Pirro.

nes to run against all those claiming under the mortgagor, whatever may be the disabilities to which they may be subjected. But if the mortgagee enters, not in his character or in his right of mortgagee only, but as purchaser of the equity of redemption, he must look to the title of his vendor, and to the validity of the conveyance he takes; and if the conveyance be such as, in law or in equity, only gives for his benefit the estate of a tenant for life, he must take that estate subject to the duties which are attached to it in the relation which subsists between the tenant for life and the remainder-man.

One of those duties is to keep down the interest of the mortgage; and having united in himself the two characters of mortgagor and mortgagee, he must, in the language of Chief Baron MACDONALD, 'be considered to have supported the rights and discharged the duties of each.'

"He owes a duty quite distinct from that which belongs to him in the mere character of mortgagee. So it was held in Corbett a. Barker, and Reeve a. Hicks; and in the judgment upon the plea in Ravald a. Russell, the mortgagee being purchaser of the equity of redemption, and having taken insufficient conveyances, obtained the husband's interest, and nothing more. The length of possession did not avail him.

"The argument on which it is contended that time ought to run against the remainder-man in all cases, is, that as the remainder-man may redeem, he ought to be barred if he neglects to do so; and, speaking generally, it is clear that the remainderman has an interest which, as against the mortgagee, entitles him to redeem. But if the mortgagee purchases the interest of the tenant for life, it is by no means so clear that he can redeem.

"Samuel Manning having entered as purchaser, and having, during the life of John Dean, united in himself the character of mortgagor and mortgagee, I think that during the continuance of that life, time did not run against the persons interested in remainder."

The case of Ravald a. Russell (1 Younge, 19), is scarcely distinguished from the one before me, and the plea of the Statute of Limitations was there overruled; and Corbett a. Barker (3 Anst., 755), as ultimately determined, is decisive.

The right of action then did not accrue until the death of John D. Provoost, in August, 1841.

Fogal a. Pirro.

At that time, his children, and the children of Catharine living, were the plaintiffs; Catharine Fogal then married to John Fogal, and her husband still living; Margaret, who died in 1832 without children, and married to one E. Morgan, the plaintiff. Sophia then married Colloon Randall, who is still living, and party to this action; Eliza then married Charles M. Day, and who died in 1845 or 1846, leaving the plaintiffs Charles M. Day and Amanda Tyte, her children and heirs at law, her husband being also dead; and the plaintiff Peter. Amanda was married in 1844 or 1845.

The present action was commenced in December, 1858.

The plaintiffs, Catharine Fogal and Sophia Randall, being under disability at the time of the right accruing, and so remaining when it was commenced, would not have been debarred by the Statute of Limitations, had that been properly set up in the pleadings. The act (2 Rev. Stat., 301, §§ 52, 53) would govern the case. (Code, § 73.) They would have ten years, after disability removed, to sue.

But as to Peter, and the children of Eliza Day, the statute would, I apprehend, have been a bar.

But the Statute of Limitations is not, in terms, set up in the answer. I am inclined to think that the decision in Lefferts a. Hollister (10 How. Pr., 383) is correct, and that the last clause of the 74th section of the Code applies to cases in which the cause of action arose before its adoption.

But if this is not so, it was always a rule that the Statute of Limitations must be set up by demurrer, plea, or answer. (Humbert a. Trinity Church, 24 Wend., 58; Sears a. Shafer, 6 N. Y. (2 Seld.), 268; Fyson a. Pole, 3 Younge & Coll., 266; Harrison a. Borwell, 10 Sim., 382; Crutcher a. Trabue, 5 Dana, 82; Dorsey a. Dorsey, 6 Gill & J., 12.)

It is insisted, on behalf of the defendant, that the statute is sufficiently set up-that the defence may be taken advantage of under the averments of the answer.

That is a question which deserves more argument and consideration than it has yet received. I do not find it necessary now to determine it, because I am clearly of opinion that a redemption in favor of some must be adjudged, and hence the account must be taken.

There are two views of importance and some nicety.

Fogal a. Pirro.

1. Either the plaintiffs Fogal and Randall redeem in full, paying off the whole debt on the mortgage and obtain possession, when the claims of the others will be adjuged in another action between them; or, 2. For the benefit of the defendant, there is a partial redemption for the interests of the two parties named, the defendant standing in the place of the plaintiffs barred. I have looked into the subject enough to see that these questions are of moment and nicety. (See Bell a. Mayor, &e., of N. Y., 10 Paige, 49, 71.) Certainly the defendant may require that it be not partially, but all redeemed.* When the account is taken, they can be passed upon.

I consider that there must be a redemption, complete or partial, because I am prepared, in any event, to adopt the rule laid down in Wade a. Johnson (5 Humph., 117), that "where a tract of land belonging to tenants in common had been adversely held for a period fixed by the Statute of Limitations, and some of the tenants have been of age during that time, and others not, the interest of each tenant is barred, or otherwise, as he may be within or without the saving of the statute.

II. December, 1862.-Under the foregoing opinion and decision, judgment was entered, dismissing the complaint as to the plaintiffs, Peter Provoost, Amanda Tyte, Charles M. Day, and Alexander Tyte (upon the ground that they were barred by the Statute of Limitations), directing that Catharine Fogal and Sophia Randall pay to the defendants, within three months, $2,767.03, being one-half the amount found due upon the computation of the referee, as corrected; and that upon such payment being made, the defendant execute and deliver to them his deed, conveying to them one undivided moiety of the premises, and directing that the complaint be dismissed as to those plaintiffs, in case they should fail to pay within the time limited. The defendant excepted to some of the findings. of facts and conclusions of law filed by the judge, and appealed to the general term. The plaintiffs, Peter Provoost, Charles M. Day, Amanda Tyte, and Alexander Tyte, excepted to so

*Compare Bogert a. Coburn, 27 Barb., 230.

Fogal a. Pirro.

much of the judgment as dismissed the complaint as to them, but did not appeal.

Charles C. Egan, for the appellant.-I. The complaint should have been dismissed. 1. It did not state facts sufficient to constitute a cause of action. (Dunlap a. Gibbs, 4 Yerg., 94; Hoare a. Peck, 6 Sim., 51; Cuthbert a. Creasy, 4 Bligh., O.S., 125; Wienes a. Ogden, 4 Wash. C. C., 631; Fyson a. Pole, 3 Younge & Coll., 266; Story's Eq. Pl., 484, 503, 529; 3 Rev. Stat., 5 ed., 503, § 78; Humbert a. Trinity Church, 7 Paige, 195; 3 Atk., 313; Jenner a. Tracy, 3 P. Wms., 287, n. B; Beekman a. Frost, 18 Johns., 544, 560, per SPENCER, J.; Giles a. Baremore, 5 Johns. Ch., 545, 553; Kidd a. Cheyne, 18 Jur., 348; Story's Eq. Pl., § 426; 1 Story's Eq. Jur., 365, and n.) 2. The whole of the premises were claimed by all, and three could under no circumstances recover. (Cole a. Irvine, 6 Hill, 634; Gillett a. Stanley, 1 Ib., 121; Miller a. McCan, 7 Paige, 451; Adams' Eq., 3 Am. ed., 674; Story's Eq. Pl., 3 ed., § 185; 1 Story's Eq. Jur., §§ 484, 490; Henly a. Stone, 3 Beav., 355.) 3. No disabilities were alleged, and on the face of the complaint the rights of all the plaintiffs were gone by lapse of time. (Beekman a. Frost, 18 Johns., 544, 560; Giles a. Baremore, 5 Johns. Ch., 545, 553; 3 Atk., 313; 3 P. Wms., 287, n. B.)

II. Catharine Provoost was not shown to have been seized in fee of the premises at her death. 1. The pretended will was improperly admitted. (Jackson a. Luquere, 5 Cow., 221.) But it gave her only a life estate. (Harvey a. Olmsted, 1 N. Y. (1 Comst.), 483; Olmstead a. Olmstead, 4 Zb., 56; Edwards a. Bishop, Ib., 61; Mesick a. New, 7 N. Y. (3 Seld.), 163.) 2. The unrecorded deed was improperly received in evidence as an ancient deed. (1 Greenl. Ev., 9 ed., 28, § 21; 1 Zb., § 144; citing Jackson a. Luquere, 5 Cow., 221; Jackson a. Lamb, 7 Ib., 431; Wilson a. Betts, 4 Den., 201; Hewlett a. Cock, 7 Wend., 371; 1 Greenl., § 510, n. 2.) 3. It was not executed by four of the parties in interest and referred to, nor acknowledged by any, and, therefore, could not pass a title to the estate of a feme covert. 4. There was no evidence that the parties executing it were the children of Peter Colyer. (Jackson a. Browner, 18 Johns., 37 ; Stokes a. Dawes, 4 Mason, 268; Jackson a. Russell, 4 Wend., 543; S. C., in error, sub nom. Russell a. Jackson, 22 Ib., 277;