author: By the Court.—Jones, J.

text:
    ELIZABETH KING, Plaintiff and Respondent, v. JAMES O’BRIEN and others, Defendants and Appellants.
    l. Married women.—Husband and wife.—Personal property.—A. Effects of the acts of 1848, 1849, 1860, 1863.
    1. Where the marriage takes place in England, and the parties subsequently come to this State, the wife having the possession of and bringing with her certain money, p^rt of which belonged to her before marriage, and the balance of which she acquired in England by her own labor subsequent to the marriage; the title to and property in said money is governed and to be determined by the common law of England, in.the absence of proof of any statutory enactment of that country on the subject; and the statutory enactments of this State have no bearing on the question.
    3. Being so determined, the money is the property of the husband.
    II. Burden of proof.

    1. If in said case the wife claims the money as hers, it devolves on her to show a change of property from her husband to her.

      a. The property in the money so brought in this State is not, by mere force of the married women’s acts of this State, transferred to the wife.

      b. Gift or transfer, presumption of. When both parties supposed that the money belonged to the wife by law; either by a transfer effected by the mere force of our State law, or by force of some statutory provision of the English law, a presumption of a gift or transfer will not arise from the husband’s acquiescence in the wife’s possession, his asking her a loan of a portion of the money, his payment back of a part and promise to repay the whole.
    1. No opinion is intended to be given as to whether such acquiescence, loan, payment and promise would in any event afford a presumption of a gift or transfer.
    m. Married, women carrying on business with capital furnished hy husband. Hffect of.

    1. In such case the business, its stock, accretions, profits and new stock purchased, will, as to the creditors of the husband, be regarded in law as belonging to him, except as to such new stock only which his wife can identify and prove as having been bought on her credit and not paid for, or bought with her money with the intent that the property therein should vest in her.
    Before Monell, Jones and Spencer, JJ.

      Decided February 4th, 1871.
    This is an action of trespass, on a case brought to recover damages for an alleged wrongful and forcible taking of certain goods and chattels, forming the stock of a store at Ho. 391 Canal-street, known as the Peoples’ Tea and Grocery Store, which goods and chattels the plaintiff claims to have been her property.
    The defendants justify under an attachment issued against the property of Charles A. King, out of the supreme court, in an action pending therein between the defendant Henderson and the said Charles A. King.
    On the trial it appeared that Charles A. King was the plaintiff’s husband ; that they were married in 1847 in London, England ; that they came to this county about five years ago ; and the plaintiff brought with her the best part of £2,000.
    The evidence as to when this money was accumulated is, in substance, this: The plaintiff, at the time of her marriage, had laces, dresses, jewelry, furniture, linen, and £600 or £700 ; she had carried on the millinery business before her marriage; she; with her husband, came to this country in 1852, and remained here seven weeks; they did nothing here but visit their friends ; at the end of the seven weeks she returned to England, and her husband went to Australia ; on her arrival in England, she went to her father’s in Liecestershire, and did business there all the time her husband was away, making money for herself in the millinery business ; her husband returned to England in two years; they both then remained in England for three years ; then he went to Spain, and three months afterward she followed him; they both remained in Spain from five to seven years ; then they returned to England, and remained there hot quite a year, when he went to Buenos Ayres ; she continued to remain in England about a year longer, and then joined her husband in Buenos Ayres, where they both remained about ten months, and then came to this country about five years ago.
    The testimony as to the manner in which the store in question was started is, in substance : The plaintiff had previously advanced her husband £3,500, to establish him in business on his own account. Of this he had repaid her, at different times, various sums, amounting to about $2,000, and told her he would pay her back all as he got along in business. She after-wards lent him $3,000 or $3,500, concerning which she thus testifies: “I did not let him have any more money only to go in business for myself; that was in « July before he went away. I then lent him $3,000 or $3,500. I had that money in my own possession; I did not have it in bank. First saw the store in Canal-street when it was opened in August. I saw it 'as soon as it was opened. It was full of goods. He took me to look at it, to see whether it suited me. -There was employed two clerks there, Mr. Wysham and a young boy. I had the lease of the store in my possession, and handed it with my other papers to Mr. Teaman when he undertook-the case.” It appeared that the assignment of the Canal-street store was taken in the wife’s name.
    The foregoing is the substance of all the evidence touching the mode and place of acquisition of the £2,000 brought to this country, the mode and manner in which the money was treated after it was brought here, - and the use and disposition made of it here.
    It further appeared that the Canal-street store was purchased about August 7,-1868 ; that the goods were attached on November 4, 1868, the husband having absconded.
    It also appeared that Mr. King carried on business in his own name in Greenwich-street. That business was dealing in tea, coffee and spices. The store in Canal-street was furnished with tea, coffee and spices from the Greenwich-street store.
    After the plaintiff had rested, the defendants moved to dismiss the complaint, on the following grounds:
    1. That the testimony shows that the property in question was not the property of the plaintiff.
    2. That the testimony shows that said property was the property of Charles A. King.
    3. That the money which the plaintiff claims to have advanced to her husband was the money of the husband at all times, and not her own ; the parties having been married in England all the personal property the plaintiff possessed at the time of her marriage, and all that she acquired during coverture, vested ab- „ solutely in her husband, and could not revest in her.
    4. That the plaintiff had failed to establish a cause of action.
    Which motion was denied, and an exception taken.

      Addison Sandford, Esq., of counsel for respondent, submitted the following points:—I. The laws of New York govern this case. The parties in New York treated the plaintiff’s money as-hers. The husband acquiesced in it, and acknowledged his obligations to his wife. This is sanctioned by the law of New York, which is not common law. (Act of 1860; 27 AT. Y., 278).' |
    II. The two thousand pounds may be treated as a ‘ gift from King to plaintiff. The two thousand dollars was a gift, and delivered. This is sustained by these authorities (Penfield v. Thayer, 2 E. D. Smith, 305; Gage n. Duchy, 28 Barb., 622; Shirley v. Shirley, 9
      Paige, 363; Denning v. Williams, 26 Conn., 226 ; Borst v. Spelman, 4 JV. 7. [4 Comst.], 284; Smith ». Maine, 25 Barb., 33).

      J. F. Malcolm, Esq., of counsel for appellant, Henderson.

      A. J. Vanderpoel, of counsel for appellant, O’Brien, made the following points:—
    I. By the common law of England (in the language of Mr. Reeve), the husband, by marriage, acquires an absolute title to all the personal property of the wife, which she had in possession at the time of the marriage; such as money, goods, or chattels personal of any kind. These, by the marriage, become his property as completely as the property which he purchases with his money; and such property can never again belong to the wife, upon the happening of any event, unless it be given to her by his .will; and in case of the death of the husband, this property does not return to the wife, but vests in his executors (Reeves’ Dom. Rel., 49 ; 2 Kent Com., 143 ; Hyde v. Stone, 9 Cow., 230.

    II. So complete was this" investiture of title in the husband, that if the parties had been residents of and married within this State, the acts of 1848 and 1849 would not have defeated his vested rights (Westervelt v. Gregg, 12 N. Y. [2 Kern.], 202; Cropsey v. McKinney, 30 Barb., 48; Tilexan v. Wilson, 43 Maine, 186).
    HI. By the common law also, the husband was entitled to the accretions, and the results of her industry and economy were also the property of the husband (Freeman v. Orser, 5 Duer, 476).
    IV. The husband cannot make any disposition of Ms property, to the prejudice of his creditors, either in favor of Ms wife or of any other person.
    V. Under the evidence Charles A. King never owed Ms wife a dollar, either legally or equitably. All the money he received from her was his before she handed it to him.
    VI. The statutes of Hew York, passed in 1848, and amended in subsequent years, did not apply to these parties. The common law controlled the rights and property relations of the husband and wife.
    VII. The fact that the husband and wife may have become residents in this State, would not restore to the wife the property which belonged to the husband, by operation of the common law, before they became such residents.
    VIII. The property having so vested, we assert, could ' not, as against his creditors, be revested in his wife, because husband and wife may have chosen to treat it as her sole and separate estate.
    IX. A debtor cannot deprive his creditors of his property, by treating it as belonging to a third person, whether it be son, daughter, father, friend or wife. The law says it was his property.

    The jury rendered a verdict for the plaintiff and assessed the damages at nine hundred and forty-two dollars and twenty-five cents. Defendants moved for a new trial on the minutes, which motion was denied.
    Afterwards, judgment was entered on the verdict in conformity therewith.
    From this judgment and the order denying the motion for a new trial, the defendants appealed.
   By the Court.—Jones, J.

The motion to dismiss the complaint should have been granted.

The evidence established that the money which was received from the wife by the husband and which went to the purchase of the stock and fixtures of the store in question, was acquired by the wife in England when the parties intermarried. According to the common law (which is the only law that we can judicially notice as obtaining in England), this money was the property of the husband. If the property in it had not changed into the wife prior to the delivery of it to him, it was at the time he received' it, still his. It would, from this, necessarily follow, that the stock and fixtures purchased by him with it, belonged to him. The fact that the wife assumed to make him the agent for its purchase, and the subsequent carrying on of the business and that he assumed to act as such, does not change the property in the chattels ; they still remain his, and the profits derived from their sale are his.

It is true, that under our laws a married woman may carry on a separate business on her own behalf,

' and be entitled to all the goods, property and profits acquired therein, as of her own sole and separate estate, that she employ agents in the carrying on of such business, and may even employ her husband as agent; but if she undertakes to carry on a business of retailing goods, the whole stock with which she commences business being the property of her husband, employing her husband as agent, the law will as to creditors of the husband regard the business as his, and the profits, accretions and new stock purchased as belonging to him, except perhaps as to such new stock which the wife can identify and prove as having been bought on her credit and not paid for, or with her money with the intent that the property therein should be hers.

If, then, the money which purchased the stock and fixtures of the store in Canal-street, was the husband’s, the business there carried on was, as to his creditors, his ; and it not appearing that a single article was purchased on her credit or with her money, the whole stock was subject to levy and sale under execution issued at the suit of the husband’s creditors.

The question then is whether the property in the money was changed into the wife prior to its delivery by her to him.

It devolved on the plaintiff to show such change of property. All that she has shown on that subject is that she had the money in her possession when she came to this country, that she retained it in her own possession ever since until she delivered it to her husband. It is not shown that the husband ever did an act, or said a word indicating an intention to part with his rights of property.

It was urged, however, that a transfer of the property might be presumed from the husband’s acquiescence in the wife’s possession, his asking her for a loan of a portion of the money, his payment back of a part, and promise to repay the whole.

If it had appeared that he had ever had possession ■ of the money, or perhaps even that he had made a claim of ownership to it, a gift might perhaps be inferred from this acquiescence and those acts.

Nothing of this kind, however, appears. The clear-inference from the evidence is that both parties sup- , posed that the property belonged to the wife by law ; either by a transfer effected by the mere force of our State law, by means of the parties having been domiciled in this State, or by force of some statutory provision of the English law. This excludes any presumption of a gift or transfer by the husband arising from any act or conduct of the parties.

If they supposed that under our State laws the property by the mere force thereof was transferred to the wife, they were clearly in error ; whether the supposition that the property belonged to the wife by force of some statutory provision in the English law is correct or not, we are not at liberty to say, for no statutory ' provision of that country bearing on the subject was proved on the trial.

It follows that no change of property in the money from the husband to the wife was shown, and in consequence for the reasons above set forth the property attached and sold under the judgment belonged to the husband and was liable to be applied to his debts.

Judgment reversed, and new trial ordered with costs to appellants, to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    ELIZABETH GONZALES, Administratrix, &c. v. THE NEW YORK & HARLEM RAILROAD COMPANY.
    I. Negligence contoibutory by passenger. Defective eyesight.

    1. Defective eyesight does pot absolve from the use of the organs of hearing.
    2. Where a passenger, whose vision is so impared that he is able to see only ninety or one hundred feet, is about to alight from a train, and a train is approaching, the noise of which can be heard a mile, he is bound to wait until he can see, by the use of his impaired vision, that the way was clear.

      a. Evidence of negligence. Consequently, if such a passenger in alighting from the train in which he was, and attempting to cross the track on which such approaching train is coming, receives therefrom aP injury, he is chargeable with contributory negligence, in that he neglected to make a proper use of his organs of hearing.
    3. Excuse f oí- omitting ordinary precautions. What is not.

      a. A brakeman calling out on approaching a station the name of the station, is neither a guaranty nor an intimation to the passengers that it is safe to leave the cars.

      b. Such outcry does not relieve the passengers from using the precautions, care and diligence in leaving the train, which they would otherwise be bound to use.
    Before Monell, Jones and Spencer, JJ

      Decided February 4, 1871.
    For the facts in the case, see Gonzales v. New York & Harlem R B. Co. (6 Bobt., 93; S. C. on appeal, 38 N. Y., 440; S. C. on appeal to general term from judgment on new trial, 1 Sweeny, 506; S.' C. appealed to court of appeals from decision in 1 Sweeney. Judgment of general term reversed. Court of appeals decision not yet reported).

      W. A. Beach, of counsel for appellant.

      R. W. Van Pelt, of counsel for respondent.
   By the Court.—Jones, J.

I do not understand that the court of appeals, in its decision upon the appeal taken from the .judgment of dismissal of the complaint entered on the second trial of this case, intended to or did overrule its previous decision upon the appeal taken from the judgment entered on the first trial, to the effect that upon the facts and evidence appearing and given on the first trial, the deceased was guilty of contributory negligence, but only held that additional facts appeared on the second trial, which relieved the plaintiff from the charge of contributory negligence. .

If these additional facts do not now appear, or if they are so charged as that the effect ascribed to them on the appeal from the second judgment no longer flows from them, or if other facts are made to appear, which overcome the force of these additional facts, then the decision of the court of appeals on the appeal from the first judgment is, so far as this court is concerned, conclusive on the point of contributory negligence on the part of the deceased.

The additional facts pointed out by the court on the appeal from the second judgment are:

1. That the sight of the deceased was impaired, so that he could see only about ninety or one hundred feet.

2. That the brakeman called out, “ All out for Mount Vernon.”

3. That the deceased, in returning home, always took the last train—the 6.40 train—and that this was his uniform rule, and that on the day in question he returned by the early train.

4. That the testimony, and without contradiction, showed that no whistle was sounded or bell rung on board of the express train until after the accident.

5. That the platform, which was on the east side of the railroad, was placed there at a time when the passenger station and depot were on that side of the railroad track, and that afterwards the station and depot buildings were built on the west side of the road, and a platform was then built on the side where the station then was, the old one being continued on the east side, and used for up-train passengers.

6. That a time-table was given in evidence, which showed that "the time appointed for the up-train to leave that station, was 3.27 p. m., and that for the express train to pass, was 3.28 p. m.

7. That the train made its full stop at the usual place, and the brakeman gave the call for the passengers to get out.

Upon the trial, resulting in the judgment from which the present appeal is taken, there was no evidence that the deceased, in returning home, always took the last train, or that that was his uniform rule, or that on the day in question he returned by the early -train because his wife was sick, nor was there any timetable put in evidence. Therefore, the above third and sixth points Of difference do not now exist;

With reference to the fourth point, the testimony is now the same as on the first trial, viz : several persons swore that they heard no- whistle or bell, while others swore they heard the whistle; and the engineer and brakeman of the express train swore that the whistle was sounded and the bell rung.

With reference to the seventh point, there was the same conflict on this as on the first trial,, some witnesses swearing that the up-train had arrived at the usual place for stopping, and some to a full stop, before the deceased attempted to get off; others swearing that it had not yet arrived, but was still in motion, on its way to the station.

As to the fifth point, there is no evidence that the platform, which at the time of the accident was on the east side of the track, was placed there at the time when the passenger station and depot were on that side. /

As to the second point, and the last part of the seventh, the evidence now is, that all the brakeman sung out was simply, “Mount Vernon”—not “All out for Mount Vernonthat, the brakeman so sung out as the train was nearing the station, and before it had arrived.

The effect of the two cries is different. While the latter may possibly be regarded as a direction to leave the cars, and a guaranty that it is safe to do so, the former cannot be regarded in any other light than as simply informing the passengers of the name of the station which the train was approaching and would stop at, and that those intending.to stop at that station might be apprised that they would shortly arrive at their destination, and be prepared to alight on arrival.

Thus, of the above points of difference between the first and second trials, none now exist, except only the first one.

The question in this case is, whether the deceased was guilty of concurring negligence in getting off the cars on the side and at the time he did.

The court of appeals, on the first appeal, held that he was ; because, if he did not look, that was negligence ; if he did look, he must have seen the express train; and to get off in the manner he did, knowing that this train was coming, was negligence.

It is sought to overcome the effect of this decision, by showing that his vision was impaired, and arguing that, by reason thereof, he could not have seen the approaching train until too late, if he had looked, and, therefore, whether he looked or did not look, he was not guilty of negligence.

I do not myself regard the argument as sound; yet, as the court of last resort, on the second appeal, regarded it (with others) as a circumstance which would authorize the jury to find in favor of the plaintiff, I think I am not at liberty to hold that this defect (if its effect is not in some way counterbalanced) does not relieve the deceased from the charge of concurring negligence.

But I think its effect is completely overcome by other undisputed facts in the case. The down express train made a great noise. Several witnesses testified they heard it coming. One testifies that he was standing on the lower steps of the rear platform of the smoking car, preparatory to getting off, when he heard the express train, and it stopped him; that he saw the deceased come out on the front platform of the first passenger car, and proceed to get off the car, and that he said to deceased, “Be careful; it is a dangerous place to get off.” He did, however, get off. Another passenger testifies that he saw Gonzales on the platform, and that- while he (Gonzales) was on the platform, he (the witness) heard the noise of the other train coming. It is also uncontradicted that, the express train was going at the rate of twenty-eight or thirty miles an hour, until it arrived within about forty rods of the station, when it slackened its speed to fifteen or eighteen miles ; that the day on which the accident occurred was a quiet, pleasant day ; that on a still day the noise of the express train, going at the rate of thirty miles an hour, can be heard about a mile off, while a train, approaching a station at the rate of three or four miles an hour, makes a very slight noise.

There is no pretence that the hearing of the deceased was defective. If his eyesight was so defective as that he could not have seen the express train at a sufficient distance for him to judge whether it was prudent for him to get off, still that did not absolve him from making a reasonable use of his organs of hearing to'ascertain whether a traing was coming.

The fact of such impaired vision, so far from absolving him from using his organs of hearing, would seem to impose on him the necessity of a more than ordinary diligent and attentive use of them.

The evidence shows that, by the reasonable and ordinary use of his organs of hearing, he could have ascertained the approach of the train, and would have been warned not to' leave the cars on which he was a passenger until, by the use óf his eyesight (which was not too defective for that purpose), he could satisfy himself that the track was clear for him to cross in safety.

It seems that, upon the facts and evidence now in the case, the decision of the court of last resort, on the first appeal, is conclusive against plaintiff’s right of recovery.

Judgment reversed, and new trial ordered, with costs to the appellant, to abide the event.


text:
    OBED WHEELER and ALFRED H. PETERS v. JAMES FRENCHE.
    I. Arrest. Order of, when not granted.

    1. Hot granted in an action commenced by summons for a money demand on contract, on affidavits showing a balance remaining due on an indebtedness, or an obligation, of the defendant to the plaintiff after the sale by plaintiff of collateral securities belonging to defendant, that plaintiff was induced to delay the sale of the securities by fraudulent representations of the defendant; and that by reason of the delay the deficiency was caused.
    Before Monell, Jones and Spencer, JJ.

      Decided February 4, 1871.
    This is an appeal from an order denying a .motion to vacate an order of arrest.
    The action was commenced by the service of a summons for a money demand on contract issued under subdivision 1 of section 129 of the Code. Ho complaint was served with the summons, nor has one yet been served.
    The order of arrest was granted on an affidavit made by Alfred H. Peters, one of the plaintiffs, and one made by one Adolph Obrig. . °
    The affidavit of Peters set forth that defendant was introduced to the plaintiffs by said Obrig, for the purpose of buying and selling stocks through these plaintiffs as brokers ; that Obrig was plaintiffs’ agent in their business of stock brokers.
    It then proceeds in the following language:
    “That it was the duty of said Obrig as such agent to inquire and ascertain the responsibility and solvency of the customers procured by him for them, the said plaintiffs.
    “That on June 8, 1869, these plaintiffs had expended a large amount of money, and performed work, labor and services for and on account of and at the request of the defendant, for which these plaintiffs held certain railway and mining shares of stock of the defendant, more fully described in Schedule “A,” hereto annexed, as collateral security for such money expended, and labor, work and services performed as aforesaid.
    “ That certain of said stock so held as collateral security, to wit, the three hundred shares of stock known as the common stock of the Mariposa Mining Company, and one hundred shares of stock known as the preferred stock of the Mariposa Mining Company, began to depreciate on said day, thereby endangering and impairing the security for the indebtedness to these plaintiffs.
    “That the said plaintiffs, being unwilling to give credit to the. said defendant, unless fully protected by collateral security, on June 8, 1869, caused notice to be given to the said defendant to advance money or give additional security to these plaintiffs to secure them against any and all losses which might be sustained by reason of the depreciation of the security held by them.”
    It then sets forth that defendant made certain representations to said Obrig as to his means and the property owned by him.
    It then proceeds as follows :
    “That the said Obrig immediately and on said day informed these plaintiffs of the representations of said defendant, and that then these plaintiffs, relying -upon the truth of the said representations made to the agent of these plaintiffs that he was solvent and owned real estate, and had cash, did not sell out the said stocks of said defendant held as aforesaid until there was a difference of three thousand five hundred and thirty-three dollars and nineteen cents between the indebtedness owing these plaintiffs by the said defendant and the value of the said stocks, which said sum is now due and owing these plaintiffs. That said difference was caused by the depreciation of certain of the said stocks of the defendant.
    “That but for the statements and representations of the defendant as aforesaid, that these plaintiffs could have protected themselves and would have suffered no loss.”
    It then sets forth that the said representations made to said Obrig were each and every of them false and untrue* in every particular, “and were made for the express purpose of inducing plaintiffs to give credit to the defendant, and were made, as deponent believes, with intent to cheat and defraud the plaintiffs.”
    The affidavit of Obrig, after setting forth that he was plaintiffs’ agent, and introduced defendant to them, then sets forth that defendant, on June 8, made to him the representations averred in the affidavit of said Peters, and that he on the same day communicated the same to plaintiffs, “as he was in duty bound to do.”
    A motion to vacate the order of arrest was made on the papers whereon it was granted. The motion was denied, and from the order of denial the present appeal is taken.

      Anderson & Ellis, for appellant.

      G. W. Van Slyck, for respondent.
   By the Court.—Jones, J.

From the plaintiffs’ affidavit it appears that the debt or obligation upon which there remains a balance due was wholly incurred prior to the making of the representations which are alleged to be false and fraudulent. That indebtedness consequently was not contracted or incurred through those fraudulent representations.

Unless, therefore, an action ex delicto for deceit will lie to recover as damages the difference between the plaintiffs’ advances and the proceeds produced by the sale of the collateral security, on the ground that such deficiency was caused by the delay to sell through plaintiffs’ reliance upon the alleged false representations of the defendant; and unless this is such an action, this order cannot be sustained (Smith v. Corbiere, 3 Bosw., 634, decided April 23, 1859 ; Code, § 179, as amended in 1863). It is unnecessary to determine whether an action for deceit will lie to recover this difference, for the present action cannot oh this motion be regarded as such.

The summons is for money demand on contract. jSTo complaint has yet been served. The summons will not authorize a complaint as for an action ex delicto. We must, therefore, assume that the complaint when served will be for a cause of action ex contractu, counting on the debt which was contracted before the making of the representations. If the complaint should happen to be for a cause ex delicto, counting on the decéit, it would on motion be set aside as being a departure from the summons.

Order appealed from reversed, and order of arrest vacated, with ten dollars costs.

Note.—Since the decision of Smith v. Corbiere, section 179 has been amended by the act of 1863 (Laws of 1863, p. 658).

Since that amendment, a defendant can be arrested in an action to recover damages for fraud or deceit, without showing either that he is a nonresident of the State, or is about to remove therefrom.


author: By the Court.—Freedman, J. Barbour, Ch. J.

text:
    RUSSELL D. MINER, Plaintiff and Appellant, v. ANNIE M. BEEKMAN and MARY CROMBIE, Administratrix of Hugh Crombie, Deceased, THOMAS J. CROMBIE, REUBEN H. CROMBIE and LIZZIE ARNOLD, Defendants and Respondents.
    I. Redemption of mortgaged, premises. Action for.

    1. Cause of action. When it accrues.

      a. On the day after the one on which the mortgage debt becomes payable.
    1. The former equity rule that it accrued at the time when the mortgagee entered into possession after breach of the condition of the mortgage has been altered by the Code.
    Babbotjb, Oh. J., dissenting.
    2. Limitations. Statute of.

      a. The action to redeem must be brought within ten years after the day on which the mortgage debt becomes payable; unlsss after that day the mortgagor’s right to redeem is extended by some agt of the mortgagee, amounting to an acknowledgment of a further grant of time, or by special agreement, or unless there has been an unconditional acceptance of a payment on account of principal and interest ; or, in case of á mortgagee in possession, a receipt of rents or profits; in which case the action must be brought within ten years after such acknowledgment or special agreement, or after the last payment, or the last receipt.
    1. The former equity rule that the action to redeem • might be brought within twenty years after the mortgagee had entered into possession in his character as mortgagee and by virtue of his mortgage alone, or within twenty years after an accounting by the mortgagee or an admission by him that he possesses a mortgage title only, has been altered by the Code.
    Babbotjb, Oh. J., dissenting.
    II. Foreclosure. Owner of eguiiy of redemption not a pa/rty to the action. Effect of.

    1. In such case the judgment of forelosure and sale does not cut off the equity of redemption; but,

      3. The judgment sale and deed thereunder operates as an assignment of the mortgage to the purchaser.
    Bakboub, Ch. J., dissented.
    3. The purchaser and his grantees occupy the position of mort- . gagees, and the owner of the equity that of mortgagor, except as to personal liability, if he has not assumed the mortgage. Babbotjb, Ch. J., dissented.
    HI. Application of the above principles.

    Accordingly, where in an action commenced Nov. 1, 1869, by the owner of the equity against the grantees of a purchaser under a judgment of foreclosure and sale, in an action to which the owner was not a party, to redeem as against the mortgage, it -appeared that the mortgage became due and payable Nov. 3, 1839, that interest-had been paid thereon up toeMay 1, 1841, that the grantees were in possession of separate parcels of the mortgaged premises; but it did not appear when, how „ or in what manner they acquired possession, or whether they or the grantees, through whom they claimed, or the purchaser at the sale under the judgment or the mortgagee had received any profits therefrom, or that there had been any acknowledgment of the right of redemption,—
    Held, 1. That the right to redeem dated from May 1, 1841, and became barred on the lapse of ten years from that date, to wit, May 1, 1851.
    3. That for this reason the complaint was properly dismissed.
    Babbotjb, Ch. J., dissented from the reasoning, but conctjbbed in the result that the complaint was properly dismissed, and placed his decision on the ground that the defendants, being trespassers and not being mortgagees in possession, nor even 'owners and holders of the mortgage, no action for redemption would lie against them; and that the action could not be maintained as one of ejectment, because the defendants were not joint trespassers or occupants.
    IV. Mortgagor and Mortgagee. SelaUve rights and duties of. General observations on, by Fbeedman, J.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided February 4, 1871.
    The action was brought by Bussell D. Miner against Annie M. Beekman, Hugh Crombie and others, to redeem five lots of land in the city of Few York, situated on Fourth-avenue, between Eighty-fifth and Eighty - sixth streets, from the lien of a mortgage, and to recover possession.
    The complaint alleged:
    That Isaac M. Woolley, the owner, and his wife, made a mortgage upon said premises to Leonard W. Lawrence, November 8, 1838, to secure one thousand dollars, payable in one year.
    Afterward, May 16, 1843, Woolley and wife conveyed the premises, subject to the mortgage, to the plaintiff Miner, which was recorded May 36,' 1843.
    Afterward, November 5,1843, Lawrence commenced proceedings to foreclose the mortgage against Woolley and wife, but did not make the plaintiff, Miner, the then owner of the premises, a party, nor had Miner any notice of the foreclosure.
    A decree of foreclosure therein went by default.
    On January 19,1843, the premises were sold under such decree, and bought in by Lawrence, the mortgagee.
    Lawrence received his deed from the master, March 16, 1843, which is recorded. Lawrence and wife then, March 13,1867, conveyed to Kendall.
    Kendall and wife then conveyed a part of the premises to defendant, Beekman, April 1, 1869, and the rest of the premises to defendant, Crombie, on the same day. •
    When Woolley conveyed to plaintiff, the premises were vacant, uninclosed and unoccupied, and were not actually occupied till April 1, 1869 ; were not susceptible of adverse possession.
    Woolley paid the interest on mortgage to Lawrence to May 1, 1841. The complaint then averred tender to defendant Crombie (and frequent attempts to tender to Beekman), amount of mortgage, interest and costs, and demand of possession, which were refused.

      Judgment asked for was an accounting as to amount due on mortgage, that plaintiff might redeem, and that defendants deliver possession, and for further relief.
    The answers were substantially alike.
    The only allegations material to consider on this appeal are these:
    The defendants admit the mortgage, and aver that it was recorded ¡November 8, 1838.
    Admit tiling bid for foreclosure ¡November 5, 1842, and aver service of process on Woolley and wife ; the filing of lis pendens ; decree, ¡December 15, 1838 (which should be 1842), of foreclosure and sale ; amount then due Lawrence on mortgage, one thousand and twelve dollars and fifty-nine cents; and premises sold under said decree by Mitchell, master, to Lawrence, and deed given and recorded.
    Aver that plaintiff had notice of the commencement of the action, and of the sale and deed to Lawrence; and that Lawrence entered into possession under the deed, occupied the premises, and paid taxes from time of receipt of deed to him till he conveyed to Kendall, and then Kendall paid. That defendants caused buildings to be put on the premises.
    2. That neither plaintiff nor his ancestors, &c., were seized or possessed of the premises within twenty years next before commencement of this action.
    3. That defendant and their grantors were • seized and possessed of premises within twenty years before commencement of this action.
    4. That the premises were held and possessed by defendants and their grantors, and in their continned occupation adversely to plaintiff, tender said judgment of foreclosure and master’s deed, for more than twenty years before commencement of action.
    5. That action was not commenced within ten years after right of action accrued.
    . Also that the land was occupied and had inclosure thereon, since the conveyance to Lawrence, and for more than twenty years before the commencement of this action.
    On the trial at special term, the plaintiff proved tender to the defendant Crombie, October 11, 1869, of the amount due on the mortgage, and that he tried to make same tender to defendant, Beekman, but could not find her.
    Plaintiff then rested.
    Defendants introduced no proof, but moved for nonsuit.
    The court granted the motion, on the "ground that the cause of action accrued when the mortgage became due, and that the statute of limitations then began to run, and that the right of action was barred by the statute.

      J. N. Hawes, attorney for appellant.

      Luther R. Marsh and John E. Devlin, of counsel.

      F. Byrne, attorney for respondent, Beekman.

      R. W. Townsend, attorney for respondents, Crombie and Arnold.

      A. R. Dyett, of counsel.
    Appellant’s counsel presented the following points: I. It is manifest that the judge who tried this cause dismissed the complaint exclusively on the ground that, under section 97 of the Code, the action was not commenced within ten years after the cause of action accrued. This was sustaining the fifth defense of the answer. The ruling is thus stated in the case: “ The court decided that the cause of action set forth in the complaint accrued when the mortgage became forfeit, by the non-payment of the principal or interest , of the money secured thereby, when the same became due. At that time the right to redeem the mortgage set forth in the complaint arose, and the statute of limitations commenced to run.” We respectfully submit that this ruling is erroneous. 1. The mortgage did not, as ruled by the court, become “forfeit” on the non-payment of the mortgage at maturity. There was no ‘cforfeiture.^ No rights, therefore, passed from mortgagor or to mortgagee. Their relation after was just the same as before. The mortgage debt became due, was unpaid, and the mortgagee had a right to foreclose. But he did not choose to exercise that right; that is, not making the owner a party, there was no foreclosure as to him. 2. Nor did any “right of action to redeem ” then arise. The right of action then in the mortgagor was not a right to redeem—for there had been no forfeiture to redeem from—but it was simply a right in the mortgagor to pay his debt, and extinguish the lien, and take possession of his property. 3. Nor did any right of action accrne to the mortgagor on the non-payment of the mortgage debt at maturity.' He had a right to tender the amount due (or offer in his complaint to pay it), and then maintain his action to recover possession and have an account of 'rents and profits. But this was a right against which no statute of limitation known to the law ever—while that relationship continues—began to run. 4. The ten years statute of limitations referred to by the court has no application to the case. The only limitation that can be set up against the right of the mortgagor to offer to pay the mortgage debt, and claim possession, of the mortgaged premises, is an adverse possession by the mortgagee for twenty years before suit. If the mortgagee holds possession under the mortgage, there is no bar, short of absolute foreclosure, to prevent the mortgagor, the owner, from paying the mortgage debt and resuming possession. If, however, the mortgagee, on default, enters into possession, and holds it with such assertion, for twenty years, not acknowledging the mortgage nor accounting under it, he then gets title by adverse possession. And this is the only limitation to the mortgagor’s right to come in and pay the mortgage debt and resume possession. This point has been so clearly and so fully discussed by Judge Comstock, in a note to his edition of Kent, that we refer to that as our argument (4 Kent, 11 ed., pp. 213-15, note 1). His conclusion is, “ that a mortgagor cannot be adjudged to have lost his estate, by lapse of time, short of twenty years’ adverse possession by the mortgagee, and that the rule on this subject is essentially unchanged.” See, also, National Fire Insurance Co. v. McKay (5 Abb. Pr. N. S. 445, 450-1), where McKay, the- owner of the fee, after executing a mortgage to Oakley, conveyed to Burwell. The plaintiff, assignee of the mortgage, foreclosed, without making Burwell, the owner of the fee, a party. So far, the case is precisely parallel with the one at bar. Then the assignee of the mortgagee brought ejectment, the same as if Lawrence or the defendants representing him, had brought ejectment here against Miner. The court held that the relative rights of the plaintiff (represented by the defendants here) and Burwell (as Miner here) were not changed by the foreclosure ; that, notwithstanding, Burwell remained the owner of the land, and the plaintiff mortgagee ; that the ten years’ statute of limitations had no application to Burwell’s rights ; that the owner of the fee might file a bill in equity to redeem or bring ejectment at a,ny time before twenty years' oAverse possession had run against Mm. 5. But even if the ten year statute were applicable, it would beginto run, not from the “law day,” the time the mortgage debt become due, but from the time the mortgagee entered into possession of the mortgaged premises (Rev. Stat. of Wis., 1858, p. 828, § 22; Knowlton v. Walker, 13
      Wis. 260; Waldo v. Rice, 14 Id. 286 ; Iowa ; R. S. Iowa, 1860, p. 478 ; 7 Clarke, 114; 15 Iowa, 525). Surely it cannot be said that the simple fact of being a mortgagee (that is, being a creditor having a lien) subjects him to an action in favor of the mortgagor, the debtor. Certainly not, unless and until he, has refused, on tender made, to accept the money and cancel the mortgage; and then it would be merely an action to compel the ■ execution of a satisfaction piece. It is only when the mortgagee comes into possession of the mortgaged premises, that he has anything belonging to the mortgagor; and it is only then, if then, that the mortgagor has any right of action against him ; not then, indeed, till tender, or offer to pay the mortgage debt in the bill. The old rule fixed the time when the statute began to run, at the point of the adverse possession of the mortgagee (Story Eq. Jur. p. 370, § 1028 ; Moore v. Cable, 1 Johns. Ch. 385 ; Demarest v. Wynkoop, 3 Id. 129, 135 ; Robinson v. Fife, 3 Ohio St. 551, 566). “In respect to the time in which a mortgage is redeemable, it may be remarked that the ordinary limitation is twenty years from the time when the mortgagee has entered into possession, after breach of the condition, under his title, by analogy to the ordinary limitations of writs of entry and actions of ejectment.” If, then, the statute commences to run from the possession of the mortgagee, and not from maturity and non-payment of the mortgage debt, there is no proof, in aid of the fifth defense, that the defendants had been in possession for ten years before the commencement of this action.. 6. The only claim in this case that is barred by the statute of limitations is the mortgage debt itself which, having fallen due more than twenty years before this suit was brought, is presumed to have been extinguished by payment (Code, §90). .

      Respondents’ counsel urged that, I. The tender made to the plaintiff was insufficient. It should have been made in silver or gold. II. Whether the cause of action be regarded as accruing when the mortgage fell due (November 3, 1839), or when the plaintiff received the master’s deed (March 16, 1843), it accrued more than ten years before the action was commenced Indeed, it accrued more than twenty years before. The plaintiff will doubtless contend that as long as Lawrence had not a pedis possessio of an adverse character, he was not obliged to commence an action to enforce his rights. This is illusory and sophistical. The cause of action is, and has always been held to be coincident and synonymous with the right of action, and the latter with the right to commence an action (13 Wend. 267 ; 17 Wend. 202 ; 1 Sandf. 98 ; 4 Selden, 362). The right to commence this action accrued the 4th day of November, 1839, or at all events, March 16, 1843, when the mortgagee, Lawrence, received the master’s deed. We think it accrued at the first-named period (2 R. S. 301, § 52 ; Id. 192, § 158 ; Code, § 97 ; Elwood v. Deifendorf, 5 Barb. 399 ; Calkins v. Calkins, 3 Barb. 305 ; 20 N. Y. 147 ; Spoor v. Wells, 3 Barb. Ch. 199 ; Davis v. Duffie, 8 Bosw. 617 ; Peabody v. Roberts, 47 Barb. 91 ; Bruce v. Tilson, 25 N. Y. 194 ; Sykes v. Roberts, 30 Barb., 473 ; Kortright v. Cady, 21 N. Y. 365 ; Wells v. Pierce, 3 Keyes, 102 ; Cleaveland v. Boerum, 24 N. Y. 613).
   By the Court.—Freedman, J.

It is the settled law of this State that the legal ownership of land mortgaged, is not, as in England, vested in the mortgagee, subject to be defeated by the performance of the condition. The mortgage is a mere lien or security for debt, and not, in any sense, a title. The debt, in the eye of the law, is the principal, and the landed security merely appurtenant and secondary (Kortright v. Cady, 21 N. Y. 343 ; Stoddard v. Hart, 23 Id. 556).

A mortgagee cannot, in any way, convey, devise, mortgage or incumber* the land ; while the mortgagor can do all these things. Judgments against a mortgagee, which are a lien on all legal estates, do not affect his interest in the land mortgaged. Such interest does not descend to his heirs, but goes to his personal representative as a chose in action; it is not subject to dower or curtesy; it passes by a parol transfer, and by any transfer of the debt, and finally it is extinguished by payment, or by whatever extinguishes the debt (3 Johns. Cas. 329 ; 1 Johns. 590 ; 4 Id. 42 ; 7 Id. 278 ; 15 Id. 319 ; 2 Paige, 68, 586 ; 5 Wend. 603 ; 2 Barb. Ch., 119).

Formerly, it is true, the mortgagee could maintain ejectment against the mortgagor, until the Revised Statutes abolished that remedy in such a case (2 Rev. Stat. 312, § 57 ; 3 Id. 5 ed. 509, § 50).

But even that right was, in this State, but a right to recover the possession of the property pledged for the purpose of paying the debt. So, the right still existing in a mortgagee in possession, to defend himself against an ejectment by the mortgagor, is but a right to retain the property pledged until satisfaction of the debt. It is but the incident of the debt, and has no relation to a title or estate in the lands. Such possession (if obtained with the assent of the mortgagor), is a just and lawful possession like the possession of any other pledge : but when its object is accomplished, it is neither just nor lawful for an instant longer. The possessory right instantly ceases, and the title is, as before, in the mortgagor without a reconveyance (21 N. Y. 343, per Comstock, J.

But without such assent, the mortgagee cannot take possession. The mortgagor in possession is considered the real or legal as well as the equitable owner of the freehold, and as such, is entitled to the possession and to the rents and profits up to the time the purchaser under a foreclosure becomes entitled to the possession (Clason v. Corley, 5 Sandf. 447). Indeed, he may maintain trespass against the mortgagee, or a person acting under his license (Runyan v. Mersereau, 11 Johns., 534).

A mortgagee out of possession can only proceed to foreclose his lien, either by action or under the statute (2 Rev. Stat. 545, and acts amendatory of the same), and the mortgagor may redeem the land from the lien of the mortgage even after default in the payment on the day appointed (18 Johns. 110 ; 28 Wend. 541) ; and tender of the amount due at any time before foreclosure, though made after the law day and not kept good, discharges the lien (Kortright v. Cady, 21 N. Y. 343).

This right to redeem is technically called the equity of redemption. At common law, upon the execution of a mortgage, the legal estate vested in the mortgagee, subject to its being defeated on performance of the condition by the mortgagor. To divest the estate of the mortgagee, it was necessary for the mortgagor to make payment at the day, according to the condition of ¿he mortgage. If he failed to do so, the estate became forfeited. This appointed day for the payment of the money, to secure which the mortgage was given, became known in legal parlance as the law day. But in the eye of equity, the absolute forfeiture of the estate, whatever might be its value, on the breach of the condition, was regarded as a flagrant injustice and hardship, although perfectly accordant with the system on which the mortgage itself was grounded. The courts of equity, therefore, stepped in to moderate the severity with which the common law followed the breach of the condition. Leaving the forfeiture to its legal consequences, they operated on the conscience of the mortgagee, and acting- in personam, and not in rem, they declared it unreasonable that he should retain for his own benefit what was intended as a mere pledge ; and they adjudged that the breach of the condition was in the nature of a penalty which ought to be relieved against, and that the mortgagor had an equity to redeem on payment of principal and interest and costs, notwithstanding the forfeiture at law. Thence grew up the system in England of filing bills in equity to redeem, and in this State the filing of bills in equity by the mortgagee to foreclose and cut off this right of redemption in the mortgagor (21 N. Y. 346, per Davies, J.).

From this it will be seen that the term equity of redemption,” although still in use, really belongs to a systém of law which is entirely different from ours. With us, this so-called equity of redemption is deemed to be the real and beneficial estate, tantamount to the fee at law, and it is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute state of inheritance at law in the mortgagor (4 Kent Com. 159). It is also subject to dower (2 Bosw., 524 ; 10 Abb. Pr. 152 ; S. C., 20 N. Y. 412); and under the Revised Statutes vendible as real property on an execution at law, although it cannot be sold under a judgment at law for a mortgage debt (2 Rev. Stat. 368 ; 3 Id. 5 ed. 649, § 45).

At any time (within the period of limitation hereafter mentioned) before the equity of redemption is absolutely barred and foreclosed, the mortgagor is entitled to redeem the mortgaged premises and thus clear them from the incumbrance upon them, and this right extends to his grantees, assignees, heirs, devisees, and every other person who has acquired any interest in, or a legal or equitable lien upon the land, and, therefore, a tenant for life, a tenant by the curtesy, a jointress, a tenant in dower in some cases, a reversioner, a remainder-man, a judgment creditor, and every other incumbrancer, unless he be an incumbrancer pendente lite, may insist upon a redemption. A wife, having an inchoate right of dower in the equity of redemption, even where a mortgage is given for a portion of the purchase money, may, on the death of her husband, redeem the premises by payment of the mortgage debt, and a foreclosure of the mortgage in the lifetime of her husband, by a suit in which she was not a party, will not cut off her right of redemption (2 Bosw., 524 ; 10 Abb. Pr., 152 ; S. C., 20 N. Y., 412).

The right to redeem is a right inherent in the land, binding all persons coming in under .the mortgagor (1 Pow. on Mort., 251). It is a valuable right, of which no one can be deprived against his consent, without due process of law, affording him an opportunity of exercising it if he deems it advantageous to his own interest. A foreclosure of a mortgage, either by action or under the statute, and the deed executed to the purchaser in pursuance thereof, are, .therefore, a bar only between the parties to the action or proceeding. As to any other person having a right to redeem and not made a party, it is a nullity. As against such party, the mortgagee (or purchaser at the sale who succeeds to his rights) acquires, ppon obtaining possession of the premises in a manner binding upon the owner of the fee, the rights of a mortgagee in possession only, with a mere lien fór the mortgage debt, and is liable, consequently, to account for the profits (Brainard v. Cooper, 10 N. Y. [6 Seld.], 356 ; Peabody v. Roberts, 47 Barb., 91 ; Winebrener v. Johnson, 7 Abb. Pr. N. S., 202); and such party is entitled to redeem, upon payment of the mortgage debt, principal and interest, without paying the cost of the previous foreclosure (Gage v. Brewster, 31 N. Y., 218). This rule is adhered to, notwithstanding the fact that, as a general rule, a decree of foreclosure, which is binding ■upon the owner of the fee, extinguishes the mortgage, and that after a sale in pursuance of the decree, neither the mortgage nor the judgment is any longer a lien upon the premises.

But, if the foreclosure be null and void as against the owner of the fee, by reason of such, owner not having been made a party, the mortgagee (or purchaser at the sale who succeeds to his rights) cannot take possession under the deed founded upon such void foreclosure, except with the assent of such owner. If he enter without such assent, he may be treated as a trespasser, and as such, he has not the power to confer, by a subsequent grant in fee of the land itself, upon his grantee, the rights of a mortgagee in possession.

From this it follows that any mortgagee or person standing in his place, who has obtained the possession of the mortgaged premises, either with the assent of the owner of the fee, or in any manner which is binding upon such owner, is, as long as the latter’s right to redeem exists, but the bailiff of such owner, and can do no more than a bailiff or steward. His possession is that of the owner, and consequently he can acquire no right during that time founded upon such possession wherewith to commence an adverse possession (Chalmers v. Wright, 5 Robt. 712 ; 1 Hill. on Real Prop. 4th ed., 587, § 21).

As long as the legal title remains in the owner of the equity of redemption, the occupation of the land by another will be presumed to be under the legal title, and one setting up an adverse title must, therefore, show that he occupied the premises under a claim of title hostile to such legal title, and exclusive of any other right (Code, §§ 81, 82, 84). For these reasons I cannot perceive how a mortgagee or one standing in his place can, during the existence of the owner’s right of redemption, enter into adverse possession of vacant lots, short of an actual, visible and notorious occupation of the lots under claim of having the entire title to them exclusive of any other right. It is not necessary, however, to determine here in what particular manner a mortgagee in possession for more than twenty years might maintain a claim of adverse possession.

But although the right of redemption is held to be an inseparable incident to a mortgage, and, in accordance with the maxim “once a mortgage, always a mortgage,” all restrictions or qualifications of this right are deemed utterly void, it may be barred by the length of time. The power of enforcing it is an equitable power residing in courts of equity jurisdiction, and is exercised upon equitable principles (Beach v. Cooke, 28 N. Y. 508). In the absence of express statutory provisions to the contrary, the courts formerly preserved the analogy between the right in equity to redeem and the right of entry at law, so that the mortgagor who came to redeem against a mortgagee in pos-» session, after the period of limitation of a writ of entry, had to bring himself within one of the exceptions which would save the right of entry at law, or the time was considered a bar to the redemption, for the reason that such lapse of time raised a presumption that the right to rfedeem had been abandoned and a release of the equity of redemption to the mortgagee executed. Judge Story, in the second volume of his Equity Jurisprudence (p. 370, § 1028), says: “In respect to the time -in which a mortgage is redeemable, it may be remarked that the ordinary limitation is twenty years from the time when the mortgagee has entered into possession after breach of the condition under Ms title, by analogy to the ordinary limitation of writs of entry, and actions of ejectment. If, therefore, the mortgagee enters into possession in his character as mortgagee, and by virtue of his mortgage alone., he is for twenty years liable to account, and if payment be tendered to him, he is liable to become a trustee of the mortgagor, and to be treated as such. , But if the mortgagor permits tbe mortgagee to hold the possession for twenty years without accounting, or without admitting that he possesses a mortgage title only, the mortgagor loses his right of redemption, and the title of the mortgagee becomes as absolute in equity as it previously was in law. In such a ca,se, the time begins to run against the mortgagor from the moment the mortgagee takes possession, in his character as such. And if it has once began to run, and no subsequent admission is made by the mortgagee, it continues to run against all persons claiming under the mortgagor, whatever may be the disabilities to which they may be subjected.” I may remark here, that this rule has been entirely superseded in this State by the provisions of the Code, which prescribe, with clearness and precision, not only the manner in which an adverse possession must commence, and the .cases in which it may be maintained and defended, but also the time within which all actions must be commenced.

The first attempt to regulate limitations in equity, which had' been adopted by courts of equity as a rule of decision, and as a guide to their discretion, by express enactments, was made by the Revised Statutes, the provisions of which, so far as they were not then already in force, severally took effect as laws, on January 1, 1830 (1 Edm. Stat., 69, and see reviser’s notes in same ed., vol. 6, p. 505). In all cases of concurrent jurisdiction, in the courts of law and of equity, the statute of limitations was declared to apply equally to both courts. But suits over the subject matter of which a court of equity had peculiar and exclusive jurisdiction, and which subject matter was not cognizable in the courts of common law, were excepted therefrom, and in all such cases, the limitation of bills for relief on the ground of fraud, was fixed at six years after the discovery, by the aggrieved party, of the facts constituting the fraud, and in all the other cases not specially provided for at ten years after the cause accrued (2 Rev. Stat. §§ 49-52). This statute, says Kent, in his Commentaries, seems to reduce the right to redeem from twenty years, as it before stood, to ten (4 Kent Com. 10 ed. 222, * 188).

By the Code, which conferred law and equity jurisdiction upon the same tribunals, all provisions contained in the Revised Statutes relating to the time of the commencement of actions were repealed, and those of the Code (§§ 73 to 110) substituted in their stead.

Section 69 of the Code abolishes the distinction between actions at law and suits in equity, and the forms of all such actions and suits in existence before that time, and prescribes that “there shall be in this State, hereafter, but one form of action for the enforcement or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action.”

This section does not abolish the action itself, as a remedy at law, or a suit, as a means of seeking relief in equity, nor does it aim at destroying the substantial differences which always existed between legal and equitable proceedings and remedies. The mere formal differences are abolished, but the principles by which the rights of the parties are to be determined, remain unchanged. The Code has given no new cause of action. In some cases, parties are allowed to maintain an action, who could not have maintained it before ; but in no case can such an action be maintained, where no action at all 'could have been maintained before, upon the same facts. If, under the former system, a given state of facts would have entitled a party to a decree in equity in his favor, the same state of facts now, in an action prosecuted in the manner prescribed by the Code, will entitle him to judgment to the same effect. If the facts are such that at the common law the party ■ would have been entitled to judgment, he will, by proceeding as the Code requires, obtain the same judgment (Cole v. Reynolds, 18 N. Y. 74).

Section 74 of the Code enacts, that civil actions can only be commenced within the periods prescribed in' this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute, &c.

There being no forfeiture of the mortgaged estate on the law day under our system, an action to redeem mortgaged premises is simply an action for permission to pay the debt, to extinguish the lien, and for such further special relief, including the recovery of the possession, as circumstances may call for. It is an action for equitable relief, and, in my judgment, comes both within the letter and spirit of section 97, which prescribes that an action for relief not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued. Actions to redeem are, in that respect, similar to actions for the specific performance of contracts, which must be brought in equity, and for that reason, must be commenced within ten years after the cause of action has accrued (Bruce v. Tilson, 25 N. Y. 194 ; Peabody v. Roberts, 47 Barb. 102, 103).

' It is important, therefore, to ascertain at what par- . ticular time a cause of action cognizable in equity may be deemed to accrue. The rule of courts of equity is, that the cause of a-ction or suit arises when, and as soon as, the party has a right to apply to a court of equity for relief (2 Story Eq. Jur. § 1521, a).

The same rule was laid down in Bruce v. Tilson, (25 N. Y., 194). Justice Allen, who delivered the ' leading opinion in that case, demonstrated very clearly, among other things, that a request • made by action and an averment of readiness and willingness on the part of the plaintiff to perform, is sufficient, and that a demand upon the defendant before suit brought, accompanied by an offer by pláintiff to perform on his part, is only important in reference to the costs of the action, but has no bearing upon the merits or the rights of the parties. Costs in equity are always in the discretion of the court, and whether they are granted or withheld they are but as incidents to and no part of the relief sought. A party getting the relief asked may even be compelled to pay costs.

In Beach v. Cooke (28 N. Y. 508, 535), Selden, J., went still further, and held that under our former system of pleading it was not necessary that a bill to redeem should contain an offer to pay any balance which might be found due, and that such offer is not indispensable now.

In Oakes v. Howell (27 How. Pr. 145), it was held that an action to reform a sealed contract or instrument in writing for the sale of lands, on the ground of mistake, accident or inadvertence, there being no fraud, is barred by the ten years’ statute of limitations, from the time the cause of action accrued, immediately after the execution and delivery of the contract, and not upon the discovery of the mistake or accident.

In accordance with the principles decided by these cases, a mortgagor’s cause of action and right to redeem must, as a general rule, be deemed to accrue, both under the Code and the Revised Statutes, at the time the mortgage becomes due and payable. The rule laid down by Justice Story, in the second volume of his Equity Jurisprudence (p. 370, § 1028), to the effect that the limitation runs from the moment the mortgagee takes possession in his character as such, which was applied by the courts of equity in the absence of a statutory regulation upon the subject, can, therefore, notwithstanding a doubt has been expressed upon this point in a note by Judge Comstock, to his edition of Kent (4 Kent Com. 11 ed., p. 213-215, note 1), be followed no longer. In Roberts v. Sykes (30 Barb. 173 ; S. C., 8 Abb. Pr. 345), it was held, that where stock is pledged as se • cnrity for the payment of a note, the pledgor’s equitable action to redeem the stock accrues or commences when the note becomes due, and if such action be not brought within ten years from that time, it is barred by the statute. As land mortgaged is but a security for the debt due to the mortgagee, or in other words, a pledge to him to secure the payment of the debt, there seems to be no good reason why the principles settled in reference to the pledge of personal property, should not be applied to the pledge of real estate.

There are decisions which seem to establish, as an exception to the general rule, limiting the time to redeem to ten years from the time of the maturity of the mortgage debt, that the right of redemption may be kept alive beyond that period, or revived again, by any act of the mortgagee which amounts to an acknowledgment of the mortgagor’s right to redeem, or by special agreement, after foreclosure (Calkins v. Calkins, 3 Barb. 305 ; affirmed in 20 N. Y. 147 ; sub nom. Calkins v. Isbell ; Borst v. Boyd, 3 Sandf. Ch. 501 ; 1 Hill. on Real Prop. 4 ed. 668, § 9).

But these decisions should be read in connection with section 110 of the Code, which, as amended in 1849, provides:

“'Bo acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party, to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.” By the concluding sentence, which was not in the original draft of the Code, the effect of partial payments was declared to be the same as before the Code.

Therefore, after making due allowance for the various changes in the law hereinbefore referred to, the present rights of the owner of the equity of redemption, against the mortgagee or his assigns, before foreclosure valid in law, may be briefly summed up as follows:

I. Where such owner is in possession, as the fact usually is in this country, he has a right to redeem for ten years from the time the mortgage became due, or the subsequent payment and acceptance of part of the principal or interest. At the expiration of that period neither his title nor his right to pay is lost, for the mortgagee can, under no circumstances, maintain ejectment. The statute simply prevents the court from granting affirmative equitable relief to such owner on Ms own application. It simply bars an equitable remedy, but leaves him free to pursue others. He is still at liberty either to tender the amount due, with interest, and thus discharge the lien by his own act without the aid of a judicial sentence, or to delay payment until the mortgagee, who cannot maintain ejectment, sees fit to institute, either by action or advertisement under a power, proceedings to foreclose. This the latter must do within twenty years after the debt is due, or its existence has been acknowledged by an act, sufficient in law, of the owner. As the- owner in the mean time has the full enjoyment of the property, and the rents and profits of the same, he cannot suffer any loss.

II. Where the mortgagee, or one standing in his place, has acquired possession of the mortgaged premises, wrongfully, or in a manner not binding upon the owner of the equity of redemption, no bill to redeem is necessary to recover the possession, but such owner may pursue his legal remedy.

III. Where the mortgagee, or one standing in his place, has acquired the possession with the assent of the owner of the fee, or in any other manner which is binding upon such owner, and the land yields no income, the right of redemption by an action brought for that purpose expires absolutely (unless extended, kept alive or revived by an acknowledgment of such right sufficient in law, on the part of the mortgagee), at the end of ten years from the maturity of the mortgage debt or subsequent payment, and unconditional acceptance of part of the principal or interest.

But if the mortgagee derive income from the land, the owner may bring his action to redeem and for an accounting, within ten years from the time of the receipt by the mortgagee of the last item.

After the right of redemption by action has been barred, the owner is still at liberty, in every case, to tender the amount due upon the mortgage, with interest, to discharge thus the lien, to demand possession, and, upon the mortgagee’s refusal, to bring an action at law for the recovery of the possession of the premises thus freed from the lien. This is a legal right which accrues upon the mortgagee’s wrongful refusal, and such action, it seems to me, can be resisted by the mortgagee only by strict proof of adverse possession under claim of title for more than twenty years.

Indeed, I am not quite sure whether the owner may not, under our system, maintain an action to recover the posseession, without a previous tender, upon proper allegations and affirmative proof of the actual extinguishment of the mortgage debt by the receipt of rents and profits, demand of possession based thereon and made before the acquirement by the mortgagee of title by adverse possession, and the mortgagee’s refusal to deliver. At any rate, I am not prepared, without further investigation,' to deny the owner’s right so to do.

It may appear strange that the morgagee should have twenty years from the maturity of the debt and after any acknowledgment of its existence, within which to foreclose his mortgage, and that the owner of the equity of redemption should be confined to ten years within which to commence his equitable action to redeem and for an accounting. It should be considered, however, that the action for redemption and an accounting rests purely upon equitable principles, and that, consequently, neither tender of amount due nor demand of possession before suit, is absolutely necessary; while the action to foreclose is brought upon an instrument under seal created by the act of the mortgagor, which acknowledges the existence of the legal debt, to secure which the mortgage is given. By reason- of the seal, the debt is not presumed to have' been paid, until the expiration of twenty years . after it becomes due and payable ; and by the express terms of the Code, an action founded upon an instrument under seal may be brought within twenty years. At any rate, the responsibility therefor is with the legislature, which enacted the statute, while it is the duty of the courts to enforce, but not to evade it.

The case of the National Fire Ins. Co. v. McKay (5 Abb. Pr. N. S. 445), cited by appellant’s counsel, is in entire harmony with the views expressed by me. The action was ejectment-. Plaintiffs claimed possession against defendant, under title acquired by deed ' upon sale under decree of foreclosure, entered in February, 18-12. Defendant had succeeded to the rights of the owner of the equity of redemption, by assignment from one Bard ell, who had acquired title by deed from the owner, before foreclosure. Burdell was not made a party to the'action of foreclosure. It was held that, when the owner of the fee has been foreclosed by judicial proceedings, the remedy of an incumbrancer junior to the mortgage, who was not a party to the action or proceeding, and who has not been cut off, is possibly by action to redeem, 'which action must be brought within the time specified in section 52 of the Revised Statutes (ten years). But the remedy of the owner of the fee, who has not been made a party, is not confined to a bill in equity to redeem. He has a concurrent remedy at law; he may tender the amount due upon the mortgage, and bring ejectment at anytime before twenty years’ adverse possession has run agains him. And for the last named reason, the court held further, that the defendant, being in possession with the rights of such owner, was not estopped, although his right to redeem was barred, from defending Ms possession by setting up the Bur-dell title against the plaintiffs, who, as against him, had acquired only the rights of mortgagees, and by reason of that fact, could maintain the action in the face of the statute, which had abolished the right to bring ejectment in such case. I may add that this decision was concurred in by the learned judge, whose ruling, at the trial, was thereby reversed.

This brief review of the course of decisions in this State, and of the changes made in the law, renders it entirely clear that the plaintiff in the case at bar is not entitled to the equitable relief prayed for upon the case made out. And this is so, notwithstanding the fact, which must be conceded, that the foreclosure and sale in 1843 are utterly void as against him. The mortgage, by its terms, was payable November 3, 1839. It- is-admitted by the pleadings, that interest was paid and unconditionally received thereon, up to May 1, 1841. The premises were vacant lots, of which plaintiff was seized at that time, and although the defendants, by answer, set up title by adverse possession for more than twenty years, and actual occupation and impi'ovement of the premises since the purchase of them, plaintiff gave no proof as to when, how or in what manner the mortgagee, through whom defendants acquired their whole title, acquired possession, or whether or not the mortgagee derived any profit therefrom. It does not appear that plaintiff’s right of redemption was ever acknowledged, after the attempted foreclosure, in any way ; and the only circumstance which does appear and may be held to have the effect of preventing the statute of limitations from running from the time of the maturity of the mortgage debt, is the payment and unconditional receipt of interest up to May 1, 1841. The right to redeem, therefore, dates from that day, and became barred on May 1, 1851. The plaintiff, on the other hand, seems to rely wholly and exclusively upon a tender made by him October 16, 1869, coupled with a demand of possession. As at that time more than twenty years had elapsed after the cause of action had accrued, it is wholly insufficient, even if the defendants could be regarded as having acquired the rights of a mortgagee in possession, of which there is no proof. Such insufficiency will still more clearly appear when it is kept in mind that in an action to redeem and for an accounting, neither tender nor demand of possession before suit is absolutely necessary. But even if that were necessary, the plaintiff could not, by his own act, revive a right barred by the statute. That the .complaint was properly dismissed, notwithstanding the reason assigned for the dismissal was somewhat inaccurate, is, therefore, but the logical result óf the legal premises herein stated.

The judgment should be affirmed, with costs, and the plaintiff left to seek his' remedy, if he have any left, in an action at law.

Barbour, Ch. J.

This action is based upon the theory that the plaintiff is entitled, as the owner in fee of the mortgaged lands, to recover the possession thereof from the defendants upon paying to them the amount due upon the mortgage. The complaint was dismissed by the court on the closing of the plaintiff’s proofs, ux>on the ground that his right to recover such possession was barred by the statute of 'limitations ; and the only question argued by counsel on the appeal was whether the right of recovery was or was not so barred.

As Miner, the owner of the lands which we're the subject of the so-called foreclosure suit, was not made a party to that proceeding, his estate in the premises was wholly unaffected by the decree therein. He remained the owner in fee ; and, as such owner, was, and continued to be, entitled to, and, constructively, in the possession of the property, not only as against the mortgagee, but the whole world, just the same as if no suit had ever been brought (Watson v. Spence, 20 Wend. 260) ; and that continued to be his condition up to the time when the defendants, or their grantors, entered into the actual possession of the premises. Previous to the entry of the defendants, therefore, the plaintiff had no right of action against them for the recovery of the possession, either upon or without the payment of the mortgage moneys. But the moment the defendants entered, the plaintiff’s right of action to recover such possession from them, accrued. If their entry was of such a character as to constitute them mortgagees in possession, within the technical meaning of that term, he could have brought an action, ■ as in equity, to recover the possession (not the ownership of the land, which was already' his), upon payment by him of the amount due upon the mortgage. Or, if their entry was that of mere trespassers, he could have recovered the possession from them in an action of ejectment.

As, then, the plaintiff’s right of action did not accrue until the defendants entered into possession, and as there was no evidence before the court tending to prove "when such possession was taken, lam of opinion that the learned justice erred in supposing that the plaintiff’s right of action was barred by the statute of limitations.

It by no means follows, however, that there was error in dismissing the complaint. Such dismissal was proper if the plaintiff would- not have been entitled, upon the pleadings and proofs as they then stood, to a judgment, had both parties rested there, although the reasons given by the judge for his decision were insufficient. It becomes our duty, therefore, to look further into the case; even though we are compelled to do so without the assistance of counsel, and ascertain, if practicable, what were the real rights of the parties, as established by the evidence.

The status of the plaintiff, as'owner of the fee, and, as such owner, the constructive possessor of the mortgaged lands, was wholly unchanged and unaffected by the decree in the so-called foreclosure suit, as I have said. The decision of the court in Watson v. Spence, above cited,—a case, by the way, remarkably like this, —is conclusive upon that subject, if good law, as I think it is. "

I am. also of opinion, upon a careful examination of the question, that the condition of Lawrence, the mortgagee, was in no respect changed by that decree. Because,—

First. There was no party to the so-called foreclosure suit who had any estate or interest whatever in the mortgaged premises, except the mortgagee himself; and his interest was only an equitable lien, by way of mortgage, to secure his debt. The court had no jurisdiction of any estate or interest in the lands other than that; and, of course, no greater or different in terest or estate could have been vested by the decree in a purchaser at the foreclosure sale, let its terms have been what they might. Indeed, the proposition that a purchaser at a sale in foreclosure can take no greater estate in the mortgaged lands than can properly be created by extinguishment, merger, or concentration, out of the several estates and interests therein of the respective parties to the suit, is as incontrovertible as is the rule in mathematics that the whole of a thing is equal to, and no greater than the sum of all its parts.

Second. As there was no party to the so-called foreclosure suit, except the plaintiff, who had, or claimed to have the slightest interest in the subject matter thereof, or in any decree that might be made therein, the entire proceeding, it appears to me, must be considered corara nonjudice, and, therefore wholly void. For, to constitute an action, three persons or parties are requisite and essential—an actor or reus, and a judex ; while, in the pretended foreclosure suit, there was no real defendant, nor indeed, any party against whom a decree could have been had; not, even, a decree over as against the mortgagor for any deficiency there might be upon a sale of the mortgaged lands. For the court had no jurisdiction, as against the owner of the fee, to decree a sale of the lands for the satisfaction of the mortgage, in his absence as a party to the suit; and, therefore, there could be no ascertainable deficiency for, which the mortgagor would be answerable under such pretended decree. The so-called foreclosure suit, therefore must, I think, be held to have been wholly fictitious ; just as much so as if it had been brought against John Doe, or any stranger to the matters which were the subject of the complaint therein.

Assuming the correctness of either or both of these propositions, it follows that Lawrence remained, after and notwithstanding such decree and sale, simply the owner and holder of the mortgage, without possession of the lands, or any right of'possession as against the owner of the fee, but merely entitled, as such owner and holder of the mortgage, to foreclose the same. If that was not the true position of the mortgagee after the sale to him, I see no way to avoid the conclusion that the mortgage debt and lien were satisfied and extinguished by the decree and sale. For that was the sole object of the suit; and such object was accomplished by the sale, if the decree and sale had any validity. " Q

If the defendants in this action acquired any estate or interest whatever in the mortgaged premises, under or by virtue of the conveyances made to them respectively by Lawrence, .they of course took only that equitable lien which he himself had as a mortgagee out of possession, that being the extent of his transferable interest.

But I am of opinion that those deeds vested in the grantees no estate or interest whatever, either in the mortgaged lands or in the mortgage itself. For a mortgagee, not in possession of the premises, has a mere chattel interest, which is transferable by a sale or assignment of the mortgage itself, together with the debt for the security of which it is given, but not by a grant in fee of the land it covers (Runyon v. Mersereau, 11 Johns., 534 ; Jackson v. Curtis, 19 Id., 325 ; Astor v. Hoyt, 5 Wend., 616 ; Astor v. Miller, 2 Paige, 68 ; Lane v. Shears, 1 Wend., 433 ; Stoddard v. Hart, 23 N. Y., 556 ; Kortright v. Cady, 21 Id., 343 ; Waring v. Smith, 2 Barb. Ch., 119, 135 ; Aymar v. Bill, 5 Johns. Ch. 570 ; 4 Kent Com. 160-1).

It is true that Judge Cowen, in his opinion in the case of Watson v. Spence (ubi supra), suggests, by way of argument or elucidation, that the deed of a mortgagee out of possession of the mortgaged lands, “might, perhaps,” enure .as an assignment of the mortgage to the grantee. But, if that eminent jurist intended to declare, as a possibility even, that a grantee in the supposed case could take by his grant the legal ownership of the mortgage debt, or of the mortgage itself, or any interest therein beyond such an equitable interest as might entitle him, in a proper suit, to a decree requiring his grantor to vest the legal ownership in him by an assignment or otherwise, he goes farther, I conceive, than is warranted either by principle or authority. Indeed, if the legal ownership of the mortgage and del¿t can be .held*to pass by the mortgagee’s deed granting the land which it covers, there can be no good reason why an execution against the holder of a mortgage may not be levied upon the land described therein, and such land sold for the satisfaction of the execution, with the same effect; a proposition, I imagine, that few lawyers would undertake to maintain (see Jackson v. Willard, 4 Johns., 41).

In the view I take of the case, however, the question whether the defendants became the owners, in any sense, of the mortgage, by virtue of the conveyances to them respectively, is quite immaterial, in so far as concerns the right of the plaintiff to recover the possession of the lands as in ejectment. For, even conceding, for a moment, that the defendants are the legal holders and owners of the mortgage, it cannot be claimed, under the proofs, that they entered into the possession of the premises under the license or with the consent of the owner of the fee, either actual or implied, or by operation of law, or in virtue of any legal proceedings; and, therefore, they must be considered, not as mortgagees in possession, within the well known meaning of that technical term, but as mere squatters or trespassers. To give them the rights of mortgagees in possession, their occupancy of the mortgaged lands must, at some time at least, have been a legal one, and not that of wrongdoers (see Phyfe v. Riley, 15 Wend., 248, where the mortgagee was the owner in fee of an undivided half of the lands, and was in possession of the whole as tenant in common thereof; and Van Dyne v. Thayer, 14 Id., 233, in which a new trial was granted because evidence of the owner’s consent to the entry of the mortgagee was excluded; also, Fort Burch, 6 Barb., 60 ; Munro v. Merchant, 26 Id., 100 ; Casey v. Buttolph, 12 Id., 637 ; Jackson v. De Lancy, 13 Johns., 537 ; Waring v. Smith. 2 Barb. Ch., 119, 135).

.Considering all this, I am clearly of opinion that the facts set forth in the complaint and established upon the trial in this case would have been sufficient, even though no tender or offer to pay had been made, to entitle the plaintiff, as the owner of the fee, to a judgment awarding to him the possession of the premises occupied by either of the defendants, if the action had been brought against such one, alone, and not against the two, jointly. But the case does not show that these defendants are joint trespassers or occupants, nor that they have, or claim to have, any joint interests whatever in the distinct parcels of land conveyed to and occupied by them, respectively, in severalty; and for that reason, the plaintiff was not entitled to a judgment as in ejectment, in this action, giving to him the possession of his land.

The remaining question is, whether the respective and relative rights of the parties were so changed by the offer and demand of the plaintiff and the refusal oí the defendants, as to entitle the former to any other relief in this action by judgment.

If the defendants had been vested by the conveyances made to them, respectively, by Lawrence, with the ownership of the mortgage and mortgage debt, so that they could be considered as mortgagees, and were legally in possession of the premises as such mortgagees, there can be no- doubt the plaintiff could have sustained this action against them, jointly, to redeem such possession and to remove the cloud upon his title, on payment of the amount due upon the mortgage. For, in that case, the plaintiff would be entitled to that relief as against'each of the defendants, and both would be necessary parties to the action, for the reason that the relative amounts to be paid to them could not, properly, be determined without the presence of both. So, too, if. the evidence upon the trial" had shown that the defendants were the owners of the mortgage in distinct though unascertained proportions, and that they refused to discharge the same on tender of payment, — the plaintiff, would, probably, have been entitled to a judgment determining the amount to be paid to each, and requiring them to execute satisfactions. But they are not mortgagees in possession, nor, even, owners and holders of the mortgage and mortgage debt, and, therefore, have no right to have from the plaintiff the money due upon such debt and mortgage. This, without considering the question as to their liability to the real owner of the mortgage for such payments as they should receive thereupon, is enough, it appears to me to show that the plaintiff is not entitled to a judgment in this action, either awarding to him the possession of the lands or removing the supposed cloud upon his title. The refusal of the defendants to receive money which did not belong to and was not claimed by them, did not constitute a cause of action; nor did their refusal to relinquish the possession of the lands occupied by them in severalty, or to release a lien which they never had or claimed, entitle the plaintiff to a judgment discharging such pretended lien, or dispossessing them. For, as I have already said, the defendants are not mortgagees in possession, nor the holders of a mortgage which is a cloud upon the plaintiff ’s title ;■ and I am not aware of any rule of law or equity which will allow him to convert his right of action against each of the defendants to recover the possession of the lands in ejectment into an equitable action against the two. jointly, by setting up a pretended lien in their favor. If the mortgage is still a lien, notwithstanding the lapse of time, Lawrence appears to be its legal owner, and not the defendants ; and if the defendants are severally in possession of distinct parcels, the plaintiff may have the relief to which he is entitled, by action against each of them, though not in this suit against both.

For these reasons, I am of opinion that the judgment dismissing the complaint should be affirmed.