Haskell v. Bailey

Waitk, J.

The mortgagee, in the present case, and those who claim under him, have suffered the mortgagor to remain in the undisturbed possession of the mortgaged premises, for a period of more than fifteen years, without requiring payment of any portion of the debt, or the performance of any act, recognizing the continued existence of the mortgage. And the question now is, whether, after the lapse of that time, the plaintiff, as the legal representative of the mortgagee, is entitled to a decree of foreclosure.

*572 That lapse of time will-bar a suit in equity, even where no statute of limitations directly governs the case, is now a well established rule in courts of chancery. Hughes v. Edwards, 9 Wheat., 481 . Elmendorf v. Taylor, 10 Wheat, 168. Pratt v. Vattier, 9 Peters, 405 . Miller v. McIntyre, 6 Peters, 405 . Beckford v. Wade, 17 Ves., 87.

The only inquiry, therefore, is, what length of time, under our laws, is' required, to bar a suit for the foreclosure of mortgaged premises ?

It is said by Judge Story, in his commentaries upon equity jurisprudence, that, “ if a legal title would, in ejectment, be barred by twenty years adverse possession, courts of equity will act upon the like limitation, and apply it to all cases of relief, sought upon equitable titles, or claims, touching real estate.” Sto. Eq., § 1520.

Hence, in those states, where the right of entry upon lands is, by statute, limited to a period of twenty years, a mortgagor, who has suffered the mortgagee to remain in possession of the mortgaged premises, during that period, can not afterward sustain a bill to redeem, without showing such circumstances, as will relieve his case from the operation of the general rule. 2 Sto. Eq., § 1028.

As, in this state, the right of entry upon lands is limited to a period of fifteen years, our courts, proceeding upon the same principle, have repeatedly holden, that the mortgagor, under such circumstances, must bring his bill to redeem, within fifteen years, and is not allowed twenty years for that purpose. And they have said, that “ it may be adopted, as a rule, that, the mortgagee being in possession, a mortgagor shall not have more than fifteen years, to redeem, after his equitable right has accrued, unless the delay shall be accounted for by statute disabilities, or other special circumstances, that may be considered equivalent.” Skinner v. Smith, 1 Day, 127 . Lockwood v. Lockwood, 1 Day, 295 . Jarvis v. Woodward, ante, p. 548.

In addition to the provision in relation to entry upon *573 lands, our statute concerning the limitation of civil actions, further provides, that “ no action shall be brought on any promissory note, not negotiable, but within seventeen years next after an action on the same shall accrue. Stat. 1849, title 31, sec. 1 & 2.

As the note, in the present case, was payable on demand, and more than seventeen years had elapsed after the execution, and before the commencement of the present suit, no action could then be sustained upon it, provided the maker thought proper to avail himself of the provisions of the statute of limitations.

But, although the plaintiff’s remedy upon the note is gone, it does not necessarily follow, that his right to resort to the pledge is lost. And, it has accordingly been holden, that, notwithstanding an action for the recovery of the debt is barred, the mortgagee may afterward sustain a bill to foreclose the equity of redemption. Belknap v. Gleason, 11 Conn. R., 160.

But this right is not an unlimited one. Lapse of time will operate as a bar of such a suit, as well as one to redeem, or any other suit in equity. The only difficulty, as before remarked, is, in determining what length of time is requisite for such purpose.

As our courts have adopted a rule, that fifteen years undisturbed possession, by a mortgagee, will generally operate as a bar to a bill to redeem, a similar rule, in our opinion, ought to be applied to bills to foreclose. And we know of no reason, why a period of twenty years should be adopted in the latter case, and not in the former.

We therefore think, that where a mortgagor, as in this case, has been permitted to remain in the undisturbed possession of the mortgaged premises, for a period.of more than fifteen years, without the payment of any portion of the debt, or the performance of any act, recognizing the continued existence of the mortgage, and until after an action for the recovery of the debt had become barred’by the statute *574 of limitations, the mortgagee ought not to be permitted to sue for a foreclosure.

The plaintiff further claims, that the defendant, in order to avail himself of the benefit of the statute of limitations, either in law or equity, must plead it, and thus give the plaintiff an opportunity to show, that he is within the saving of the statute.

Had the plaintiff brought an action of assumpsit on the note, there is no doubt but that the defendant must have pleaded the statute, in order to have availed himself of the benefit of its provisions.

But, that rule does not apply to suits in chancery. And it has accordingly been repeatedly holden, in modern cases, contrary to opinions formerly expressed, that an objection to a bill to redeem, on the’ ground of length of time, may be taken, by way of defence, under a demurrer, provided the bill be so framed* as to present such a case, and that, if the plaintiff be within any exception to the statute, it is incumbent upon him so to state it in his bill. Sto. Eq. Plead., §484. Hardy v. Reeves, 4 Ves., 479. Bulkley v. Bulkley, 2 Day, 363 .

We see no reason, why the same principle does not apply to bills to foreclose, as to bills to redeem ; and why the same objection may not be made to the plaintiff’s title, when the facts appear, without objection, upon the .report, as if stated in the bill. It is enough, that the length of time relied upon appears in the case.

Our advice therefore is, that the plaintiff’s bill be dismissed.

In this opinion, the other judges concurred.

Bill to be dismissed.