Opinion of the Court, per MILLER, J

cited on the subject, proceeds to say: "In such cases, until the happening of the future event, it must necessarily remain uncertain whether a gift would exist at all, and that could not be said to have vested which was not certainly given." He further said: "Those who were to take in the prescribed event were uncertain until it happened; might not be any one of those in esse at the testator's death, and might prove to be a grandchild born twenty years later." The authority last cited is directly in point, and we think decisive of the question discussed. In fact the three cases last cited bear directly upon the question and dispose of it adversely to the appellants' contention.

The appellants' counsel cites numerous authorities, mostly cases from the British reports, to sustain the position that the estate vested at the time of the testator's death. We have given due attention to these authorities, and while the cases cited may, we think, be distinguished from the case at bar, none of them hold that, when the intention is manifest that the vesting of the estate shall not take place until the expiration of the life or lives upon which it is limited, it becomes vested prior to that period. Even if any of them may be regarded as sustaining the doctrine contended for, they are adverse to the rule laid down in this State, and established in the cases last cited, and to the weight of authority, and they cannot be followed without overruling the decisions which have been cited and discussed.

Some cases are also cited by the appellants' counsel from the courts of this State in reference to the effect to be given to the use of particular words employed. (Livingston v. Greene, 52 N. Y. 118; Embury v. Sheldon, 68 id. 227; McKinstry v. Sanders, 2 Sup. Ct. T. & C. 181.) We do not discover any thing in these decisions which is adverse to the views already expressed.

There is another ground upon which the twenty-second clause of the will must be held to be inoperative and void, and that is that it is repugnant to the provisions of the Revised Statutes

Statement of case.

which prohibited accumulations, except for the times and purposes there expressly permitted. (1 R. S. 726, §§ 37, 38.)

It follows, from the discussion had, that the final result must be that the devise of real estate in the State of New York was void, and that the heirs-at-law of the testator, by reason thereof, were seized in fee of the same and entitled to the rents and profits which have been received by the executors. Other questions are raised by the appellants' counsel, but the conclusion arrived at renders it unnecessary to consider them. The judgment appealed from should be affirmed, with costs of all the parties to be paid out of the estate.

All concur, except EARL, J., not voting.
Judgment affirmed.

LOUISE M. HOWELL et al., Respondents, v. CLARA B. LEAVITT

et al., Appellants.

Possession of real estate by a mortgagee, acquired by force or fraud, against
the will and consent of the owner, and without color of lawful authority,
is not a defense to an action of ejectment brought by such owner.
R. conveyed certain premises, subject to a mortgage thereon, to T., who exe-
cuted to R. a mortgage for part of the purchase-price; T. conveyed to H.; R.
foreclosed his mortgage, making H. and wife parties defendant. The
former, however, had died prior to the commencement of the foreclo-
sure suit, summons was served upon the latter, judgment of foreclosure
was rendered and the premises sold thereon to R., who, by the aid of a writ
of assistance, put T. out and got into possession; he then paid the prior
mortgage and conveyed the premises to defendants. In an action of eject-
ment brought by the heirs of H., held, that the possession of T., after his
deed to H., must be assumed to have been as tenant under the latter, and
upon his death, as tenant of his heirs, so that the possession of T. was
theirs, and when he was expelled their possession was taken away; that
as to them the judgment of foreclosure was a nullity, the possession so
taken was unlawful and in all respects a trespass, and so was no defense
to the action.

Under the provision of the Code of Civil Procedure (§ 375), providing that
the time during which a person who might maintain an action to recover
real property is under a disability specified, "the time of such a dis-
ability is not a part of the time limited
for commencing the

SICKELS-VOL. L.

78

*

*

*

action

*

Statement of case.

except that the time so limited cannot be extended more than ten years after the disability ceases." A party is always entitled to twenty years in which to bring his action, and in case of a disability, to so much more as the period of disability would add, except that such addition must not be more than ten years after the termination of the disability. The words "after the disability ceases" relate only to the extended time, and have no effect in any case to cut down or lessen the twenty years' limitation.

R., defendant's grantor, took possession, claiming title in March, 1858; plaintiff L. became of age in December, 1864, and action was commenced in November, 1878. Held, that it was not barred as against L. by the statute; that she had twenty years from the time when she became of age in which to bring the action.

(Argued March 6, 1884; decided April 29, 1884.)

APPEAL from judgment of the General Term of the City Court of Brooklyn, entered upon an order made September 17, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial without a jury.

This was an action of ejectment.

The material facts are stated in the opinion.

D. P. Barnard for appellants. A mortgagee or his assignee in possession of the mortgaged premises is protected in his possession by the mortgage. (Jackson v. Minkler, 10 Johns. 480; Jackson v. Bowen, 7 Cow. 13, 19, 20; Van Duyne v. Thyre, 14 Wend. 233, 236; Phyfe v. Riley, 15 id. 248, 254; Fox v. Lipe, 24 id. 164; Olmstead v. Elder, 2 Sandf. 325, 327-8; St. John v. Bumstead, 17 Barb. 100; Winslow v. McCall, 32 id. 241, 245; Bolton v. Brewster, id. 390, 395; Sahler v. Signer, 44 id. 606, 614; Pell v. Ulmer, 18 id. 139, 141-2, 144; Hubbell v. Moulton, 53 id. 225, 226; Bucklin v. Bucklin, 1 Keyes, 141, 147; Mickles v. Dillaye, 17 N. Y. 80, 85.) The purchaser of mortgaged premises by a deed from the mortgagee, or front an officer on the foreclosure of a mortgage, is deemed to be an assignee of the mortgage. (Jackson v. Minkler, 10 Johns. 480; Jackson v. Bowen, 7 Cow. 13; Robinson v. Ryan, 25 N. Y. 320; Vroom v. Ditmas, 4 Paige, 526; Gage v. Brewster, 31 N. Y. 218, 224; Winslow v.

Statement of case.

Clark, 47 id. 261, 263; Miner v. Beekman, 50 id. 337, 345.) The defendant Leavitt had a good defense to the action of ejectment, pending the action brought by the Howells to redeem, which conceded that she was to be treated as a mortgagee in possession. (Hubbell v. Moulton, 53 N. Y. 225.) If the court should hold that the defendants are not entitled to the right of mortgagees in possession, the court below should have dismissed the complaint as to the plaintiff Louise M. Howell, because of the statute of limitations. (2 R. S. 293, part 3, chap. 4, title 2, art. 1, § 5; Code of Pro., $$ 5, 16, 78, 88; Jackson v. Cairns, 20 Johns. 301, 306; Wilson v. Betts, 4 Denio, 201, 208.)

William J. Gaynor for respondents. Ejectment will lie by the owner against the mortgagee when he has taken possession of the mortgaged premises without the consent of the owner, expressed or implied, or by legal proceedings, legal as to the owner. (Van Duyne v. Thayer, 14 Wend. 234; Mad. Ave. Ch. v. Oliver St. Ch., 73 N. Y. 94; Newton v. McKay, 30 Mich. 381; Russell v. Ely, 2 Blackst. [U. S.] 575; Bennett v. Austin, 81 N. Y. 308-16; Gross v. Welwood, 90 id. 638; Ten Eyck v. Craig, 62 id. 406; Trim v. Marsh, 55 id. 599; Phyfe v. Riley, 15 Wend. 248; Code of Civ. Pro., § 1493; Gillett v. Easton, 6 Wis. 30; Tallman v. Ely, 16 id. 257.) If defendants wanted a finding that Roberts and his successors were mortgagees in possession, it was necessary for them to have requested the trial court to so find in order to make the question available on appeal. A refusal to find would have been the subject of an exception. (Van Dyke v. Hyatt, 46 N. Y. 459.) If a request to find that the action was barred had been made generally, it could not avail against any particular plaintiff. To be of any effect it would have to be held good against all. (Heilburn v. Hammond, 13 Hun, 476–482; Crawford v. Everson, 68 N. Y. 624; Van Slyke v. Hyatt, 46 id. 459.) Plaintiff Louise M. Howell is not barred by the statute of limitations in force at the time of the commence

Opinion of the Court, per FINCH, J.

ment of this action.

(Code of Civ. Pro.; Acker v. Acker, 16

Hun, 174; 81 N. Y. 143.)

FINCH, J. In February, 1856, Roberts became the owner of the premises in dispute, having a good title thereto, but subject to a purchase-money mortgage of $5,500 given by him to Leech. A few months later Roberts conveyed to Tasker, subject to the $5,500 mortgage, the latter executing also his own mortgage to Roberts for $1,800. Still later in the same year Tasker conveyed to Ephraim Howell, subject to the Leech mortgage of $5,500, but the deed making no reference to the $1,800 mortgage. On the 18th of September, 1857, Roberts filed a complaint for the foreclosure of the $1,800 mortgage, naming Tasker and Howell and wife as defendants, and Mrs. Howell was served November 17th of that year. In the previous month of October, Howell died, although the fact of his death was for some time after unknown. An order of publication was made, and in the end, judgment of foreclosure was rendered; the property was sold to Roberts, the mortgagee, who by the aid of a writ of assistance, put Tasker out and got into possession. At this date, and at the date of the commencement of the foreclosure action, Howell being dead, the title had descended to his five children, who were all infants, the eldest being about fourteen years of age, and the youngest only about one. The possession of Tasker after his deed to Howell, must be assumed to have been as tenant under Howell, and upon his death as the tenant of his children so that Tasker's possession was theirs. When he was expelled their possession was taken away. But the judgment of foreclosure did not affect them, for they were in no manner parties to it, and as to them it was an absolute nullity. Possession of their property was taken from them, not only without their consent, but against their will, and by a force which had no right or authority behind it, but was in all respects a trespass. After thus forcing out the true owners, Roberts paid off and discharged the $5,500 mortgage, and then sold the property, and the present defendants are his grantees and seek to defend the ejectment brought