Jane McKechnie and Others, Respondents, v. John D. McKechnie, as Surviving Executor, etc., of Alexander McKechnie, Deceased, and Orin S. Bacon, as Surviving Executor, etc., of James McKechnie, Deceased, Appellants

Jane McKechnie and Others, Respondents, v. John D. McKechnie, as Surviving Executor, etc., of Alexander McKechnie, Deceased, and Orin S. Bacon, as Surviving Executor, etc., of James McKechnie, Deceased, Appellants. Attorney a)id client — right of the former to annul his clienfs acts — ancient deeds', as shown by the record —■ equity will not aid stale demands. An attorney employed to effect a statutory foreclosure of a mortgage has no implied power to compromise the rights of his clients or to nullify the act which he is employed to perform, and before mortgagees can be bound by the promise of their attorney, in effect, that they will continue, after foreclosure, to hold the property as mortgagees, it must be shown that the attorney was expressly authorized to make the promise, Where deeds have been on record for more than thirty years the presumption is that they were duly executed and delivered. Equity refuses its aid to stale demands, and where, in an action brought to redeem a mortgage, it appears that the transaction occurred thirty-three years before-the trial, and that nearly all the actors in the transaction out of which the action arose have died, equity will not assist the plaintiffs. Appeal by the defendants, John D. McKechnie, as surviving executor, etc., of Alexander McKechnie, deceased, and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ontario on the 23d day of April, 1895, upon the decision of the court rendered after a trial at the Ontario Special Term, adjudging that the plaintiffs, Jane McKechnie and Mary McKechnie, were the -owners of the premises described in the complaint, subject to a life lease of the plaintiff Jane McKechnie in five-ninths thereof, and subject to the amount due on a mortgage to be ascertained by a reference, and when ascertained that the plaintiffs have leave to redeem the premises from the lien of the mortgage. October 15, 1891, this action was begun to obtain leave to redeem the premises described in the complaint from the lien of a mortgage executed October 22, 1856: Robert McKechnie acquired title to the premises described in the complaint by two deeds, one executed May 1,1837, by Gardner Straight and wife, unrecorded, and the other executed August 1, 1837, by Joseph Maftel and wife, recorded in the office of the clerk ■of Wayne county August-2,1857, in book 22 of Deeds at page 197. April 27, 1852, Robert McKechnie and Jane,, his wife, in consideration of $2,500, conveyed, by a quit-claim deed, the premises to James and Alexander McKechnie, which deed was recorded in the ■office of said clerk July 7, 1852, in book 54 of Deeds at 'page 185. October 22, 1856, James and Alexander McKechnie and their wives, in consideration of $3,000, conveyed the premises to Robert McKechnie by a deed recorded in the office of said clerk Movember 12, 1856, in book 67 of Deeds at page 228. To secure the payment of the purchase price of said conveyance, Robert McKechnie, October 22, 1856, gave his bond to James and Alexander McKechnie ■(the vendors) by which the obligor undertook to pay to the obligees $3,000, with interest, as follows The interest thereon October 22, 1857, and interest thereon with $500 of the principal October 22, 1858, and a like sum with interest on every twenty-second day of ■October thereafter until the vrhole sum should be paid, the last' payment falling due October 22, 1863. The bond contained a provision that in case any installment of principal or interest remained unpaid for thirty days after it- became due, the whole principal sum should, at the option of the obligees, become immediately due and payable. To. secure the payment of his bond Robert McKechnie ■executed, October 22, 1856, a mortgage on the premises soconveygd) to him, which contained the same conditions as the bond, and- was-recorded in said- clerk’s office Movember 12, 1856, in book MA 40 op. Mortgages at page 228. December 10 and 15, 1857, Bobert McKechnie executed to James and Alexander McKechnie the following bills of sale: “Jambs and Alexander McKechnie, To B. M. McKechnie. To 1 bureau........................................ $5 00 To 2 .weighing scales................. :............. 25 00 To a panorama..................................... 15 00 .......................................... . 35 00 $35.00, 1857, Dec’r 10th, reed, pay., B. MoKECHKTE.’’ “ Jas. & Alex. McKechnie, To Bobert McKechnie. To 7 stoves, one cook stove, two coal, one box, three parlor.......................................... $40 00 To 100 ft. stove pipe................................ 15 00 To 1,000 beer and whiskey bbls. and ten puncheons..... 500 00 To 4 carpets....................................... 30 00 To 1 mahogany and 8 other tables..................... 40 00 To 2 one-horse sleighs and cutter...................... 40 00 To 1 mare and wagon and lumber wagon............... 100 00 To 200 bush, malt,- poor........ 150 00 To 24 chairs and 2 bureaus........................... 25 00 To 3 beds, bedclothes and bedstead........... 25 00 To 50 lbs. hops..................................... 4 00 To 3 cords wood, poor............................... 6 00 To 1 panorama and 2 music boxes............ 25 00 To 3 bedroom stands................................ 7 00 To 2 wheelbarrows.....■............................. • 3 00 To 5 shovels....................................... 2 00 To 2 looking glasses................................. 3 00 $965 00 “Bec’d pay. 15th Dec., 1857. “ BOBT McKECHNIE.” December 22, 1857, Bobert McKecimie executed a quit-claim deed, which purports to convey said mortgaged premises to Pomeroy Tucker, which deed was recorded in said clerk’s-office June 30,1859, in book 73 of Deeds at page 231; and December 23, 1857, said Pomeroy Tucker and Ms wife executed a quit-claim deed, which purports to convey the mortgaged premises to Jane McKechnie, one of the plaintiffs herein, who was then the wife of Robert McKechnie, which deed was recorded in said clerk’s office June 30, 1859, in book 73 of Deeds at page 290. March 11, 1858, Robert McKechnie died intestate, leaving him ’ surviving Jane McKechnie,. his widow, born in 1827, Lizzie McKechnie, born June 11, 1846, Mary McKechnie, born October 9, 1848, and John A. McKechnie, born February 14, 1851, children and •only heirs and next of kin of Robert McKechnie. No administrator for the estate of Robert McKechnie has over •been appointed. In May, 1863, Lizzie McKechnie died intestate, leaving her surviving her mother, her brother and sister, her only heirs and next of kin, who are the plaintiffs in this action. No administrator lor her estate has ever been appointed. For many years preceding the death of Robert McKechnie he was a brewer, and at the time of his death the mortgaged premises were occupied by him as a brewery. He left no personal estate, -except about 125 barrels of ale, worth $6 per' barrel; 750 bushels of malt, worth $1 per bushel; about 1,000 empty ale barrels, worth $2 per barrel; puncheons, stillions, vats and implements used m the brewery, of the value of about $500, and a horse, wagon, sleigh and harness, worth about $165, which were in and about the brewery when he died. Some of this property is described in the above bills ■of sale. • Robert, James and Alexander McKechnie were brothers, and' at. the date of the death of Robert, James and Alexander were, and for many years had been, partners, under the firm name of J. & A. McKechnie, and engaged in the business of brewers at Canandaigua,- N. Y. Three or four days after the death of Robert McKechnie, James McKechnie came to the brewery at Palmyra and took charge of the business, and' thereafter it was carried on by the firm o-f J. & A. McKechnie. April 14, 1858. James and Alexander McKechnie began, through James -Peddie, their attorney, statutory proceedings to foreclose said mortgage. A notice of sale was prepared and signed, which stated that a default had occurred in the payment of the sums secured and that the premises would be sold July 10, 1858, at a place named. April 14, 1858, this notice was published in the Wayne Democratic Press, a newspaper published in the county of Wayne, and was so published weekly for twelve weeks, as appears by the affidavit of the publisher, verified July 19, 1858. April 14, 1858, a printed ■copy of the notice was duly posted on the outer door of the court house of said county, and on the same day a printed copy thereof was filed with the clerk of the county, who on the same day affixed it in a book prepared and kept for that 'purpose. .These facts appear by the affidavits filed. James Peddie verified an affidavit August 17, 1858, in which it is stated that June 26,1858, he personally served Jennie McKechnie with a printed copy of said notice of sale by delivering it to and leaving it with her at her residence at Palmyra, and that July 10, 1858, he sold the mortgaged premises to James and Alexander McKechnie for $3,411.02, they being the highest bidders and that being the highest sum bidden. These affidavits were recorded in the office of the clerk of the county of Wayne June 30, 1859, in book 45 at page 228. Jane McKechnie testified on the trial that a notice of the sale was not served on her.- In October, 1858, Jane McKechnie and her children removed from Palmyra to 'Canandaigua, where she occupied a house on FTorth Main street, owned by James and Alexander McKechnie, until October 22, 1892, for which she paid no rent. For nearly seven years after their removal to Canandaigua, and until September, 1865, the family was supplied with groceries and fuel by James and Alexander McKechnie without receiving payment therefor, and after-that date they gave her twenty-five dollars per month until April 5, 1884. In July, 1862, James and Alexander McKechnie received $1,500 from the State for damages done to the mortgaged premises by the ■enlargement of the Erie canal. January 28, 1883, Alexander McKechnie died, leaving a will of which John D. McKechnie, -defendant, is the surviving executor, and September 12, 1889, -James McKechnie died, leaving a will of which Orin S. Bacon, ■defendant, is the surviving executor. ■Frank Rice and Ilenry M. Field, for the appellants. James G. Smith, for the respondents. [MAJORITY — Follett, J.:] Follett, J.: From July 10, 1858, the date of the. sale under the mortgage foreclosure, to October 15, 1891, the date of the commencement of this action, a period of more than thirty-three years, the defendants and their testators, have been in the undisputed possession of the mortgaged premises, claiming to be the owners thereof, and enjoying all of the rights of proprietorship. Each of the defendants interposed, in addition to defenses on the merits, the defense that the cause of action alleged in the complaint was barred by the ten and twenty years’ Statutes of Limitations. During all of these years Jane McKechnie, plaintiff, has been of full age and under no legal disability. Mary McKechnie, plaintiff became twenty-one years of age October 9, 1869, and for twenty-two years before the commencement of this action lias been of full age and under no legal disability. February 14, 1872, John A. McKechnie, plaintiff, became twenty-one years of age, and for eighteen years before the commencement of this action has been of full age and under no legal disability. The litigants have been during this period residents of the village'of Canandaigua, which is only thirteen miles from the village of Palmyra, the place where the mortgaged property is situated. Prior to September 1,-1877, when chapter 4 of the Code of Civil Procedure took effect, an action to redeem land from the lien of a mortgage brought against a person in possession claiming title in hostility to the mortgagor was barred after such possession had continued for ten years. (Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, Id. 468.) By section 379 of the Code of Civil Procedure, which took effect September 1,1877, the time in which such an action might be brought was extended to twenty years. By section 101 of the Code of Procedure and by section 396 of the Code of Civil Pi’ocednre- the time in which infants may sue is extended one year after they .become of age. Under both Codes the cause of action set forth in the complaint is barred, unless it is established that the possession of the defendants and of their testators has not been hostile to the title of the mortgagor and to his successors in interest. The learned trial court found that defendants’ testators entered into possession of the premises and continued therein as mortgagees and not as owners under a promise made through James Peddie, their attorney, to the plaintiff Jane McKechnie, that the proceeds of the premises, over and above necessary and reasonable charges and expenses, should be applied to the support of herself and children, and that the promise was authorized by the mortgagees who afterwards recognized and ratified it. This is the only finding relied on by the plaintiffs to take this case out of the operation of the statute, which finding is challenged by the defendants as contrary to the weight of evidence. It is conceded by the learned counsel.for the respondents that there is' no legal evidence of an express promise by the defendants’ testators to hold the premises as mortgagees in possession and account for the rents and profits, and the only evidence tending to show that Jane McKechnie ever believed in the existence of such a .promise was given by her. She testified that in June, 1858, before she left the premises, James Peddie, the attorney who foreclosed the mortgage, called on her and the following conversation occurred: “ Q. I (plaintiffs’ counsel) only want to know what the conversation was ? * * * A. He (James Peddie) came to tell me that James McKechnie said that he was not going to settle my husband’s business as he had promised him to; he thought I was not to make myself at all uneasy about the business, because it was going to be thrown altogether, and I would be well supported out'of the business. As he was leaving, he stopped at the door and he said, ‘ Don’t make yourself at all uneasy; you are to be well supported out of this business.’ Mr. James told him so. * * * Q. I understood you to say that Mr. Peddie told you that James McKechnie told him to come and tell you that ? A. Yes, sir. Q. Did you make any reply to him? * * * A. Yes, sir. Q. Did you tell Mr. Peddie what James had told you? A. Yes, sir. Q. Will yon state what you told Peddie that James had said to you ? A. I told Peddie that James told me that Mr. Peddie would come and tell me all about the business ; I had spoken to James and —— Q. I only asked for what you told Mr. Peddie. A. Yes, sir.”- An attorney employed to effect a statutory foreclosure of a mortgage has no implied power to compromise the rights of his client, or to nullify the act which he is employed to perform, and before the defendants can be bound by the promise of Peddie it must be shown that he was expressly authorized to make the promise. (Lewis v. Duane, 141 N. Y. 302, affg. 69 Hun, 28.) There is 'no evidence that James Peddie liad any authority to make such a promise. It appears that at this time he was engaged in foreclosing the mortgage, which proceedings* were begun April 14, 1858. His' former partner, called by the plaintiffs, testified that he could not say that James Peddie was the agent for J. & A. McKechnie in any way, was simply an attorney for them in legal matters which they had at Palmyra. He did not know that Peddie had any charge of the brewery property, and, so far as he knew, his employment related to the brewery business, debts and accounts. This falls far short of showing that Peddie was vested with authority to make the promise testified to by Jane McKechnie. On the contrary, it tends to show that he had no such ■authority. It is argued in behalf of the plaintiff that the snbsecpient deal ings between J. & A. McKechnie and the plaintiffs tend to support the findings that such a promise was made, and that by such dealings it was ratified. I am unable to find any support in the evidence for this contention. During these thirty-three years none of the plaintiffs, so far as the record shows, took the slightest interest in the Palmyra brewery. Had there been an agreement that the mortgage and interest thereon, the taxes and expenses of managing the brewery and the value of the goods and the house rent furnished, were to be charged on one side and the rents and profits on the other side of a mutual account, it seems to me there would have been some entry in the books denoting such an understanding, or, at least, that "these plaintiffs, or some one of them, during these years, would have taken some steps to ascertain the state of the accounts and the condition of the property. If such an agreement had been made a.nd acted on by the parties it is altogether unlikely that John A.. McKechnie would have been ignorant in respect to it. He was the only son and lived with his mother and sister. At the time of the trial of this action he was forty-three years of age,- and, as he testified, a man of property. The first conversation he ever had with either of the defendants, in respect to the Palmyra brewery, was in April, 1890, when Crin S. Bacon, the executor of James MeKechnie, stated that" thereafter he "would have to pay rent for the house which he and his mother had occupied for so many years. John A. MeKechnie testified that the mortgage was then spoken of by Bacon, but John A. MeKechnie did not then assert that he knew of its existence, or that he,, his mother and sister, had a right to redeem the property. As before stated, from October, 1858, to September, 1865, J. & A. MeKechnie supplied the plaintiff with a house, fuel and groceries.' From September, 1865, until April 5,1884, the family occupied the house free' of rent and received twenty-five dollars per month in cash. January 28, 1883, Alexander MeKechnie died. John A. MeKechnie testified that when the money payments were stopped in April, 1884, Alexander McKechnie’s executor told him they wpuld not get. twenty-five dollars per month thereafter, and said that he (John A. MeKechnie) must take care of his mother, and that James McKechnie, the surviving member,of J. & A. MeKechnie, would take good care of the sister, Mary MeKechnie. No steps were then taken to assert any rights in the Palmyra property and no claim was made that payments were due the plaintiffs on account of that property. The plaintiffs continued to occupy the house, without the payment of rent, until September 12, 1889, when James MeKechnie died, leaving a will giving legacies to John A. and Mary MeKechnie, two of these plaintiffs. Whether James MeKechnie did or did not care for Mary up to the time of his death, pursuant to the promise, does not appear. She was not a witness on the trial. April 1,1890, the executor of Alexander MeKechnie conveyed the interest of that estate in the house, which then was and for so long had been the home of the plaintiffs, to the executor and trustee of James McKechnie. Jane MeKechnie testified that in October, 1890, Mr. Bacon, the executor of James, told her she would have to pay rent for the house. She described the conversation as follows: “ Mr. Bacon told me that I would have to pay rent for the place I was living in ; I thought it very strange that I should be asked for rent for the place, and I told Mr. Bacon that if I had to pay rent I should have to look out for something to pay it with; that I hadn’t a dollar of my own, and I thought 1 had something in the Palmyra property left for mé, and Mr. Bacon told me that was outlawed, and I said : ‘ Why isn’t this outlawed ? ’ ‘ This was an entirely different thing,’ he said, and I' couldn’t understand it, and I asked him if the law was made to protect the rich man’s thousands and steal the widow’s mite; Mr. Bacon was standing at the outside of the door at the time and there was nothing more said. The house I was then living in was the house next to the house I am living in now, the very next door. * «. *. They certainly knew I had nothing to pay rent with unless I looked something up to pay it with.” Bacon denied that he ever had such a conversation with Jane McKechnie. It is insisted in behalf of the plaintiffs that the fact that the goods which J. &. A. McKechnie furnished them were charged on the hooks of the firm establishes the plaintiffs’ theory that the defendants’ testators did not take possession of and occupy the premises,, claiming title thereto, hut were in possession as mortgagees recognizing the title of the plaintiffs. I think the accounts do not tend in any way, under the circumstances of this case, to establish the plaintiffs’ claim. Payment for these goods was never dt manded. No account was ever presented, and the fact that they Were charged simply indicates that they were entered for the purpose of showing how much ivas furnished this family and to keep an account of the expenses of the firm. The plaintiffs concede that the amount furnished by the firm in goods, rent and money exceeded $7,000. It seems very plain tome that the whole course of the dealing of the firm with their brother’s widow' and children establishes the fact that they were dealing generously' and not deceitfully with them. The finding that the defendants’ testators entered into possession of the brewery property under an agreement to account for the rents and proceeds and to hold it as mortgagees in possession, is wholly ■ unsustained by the evidence. December 22, 1857, Robert McKechnie quit claimed the brewery property to Tuvker, who on the. next day quit claimed it to Jane McKechnie. Both of these deeds were recorded June 30, 1859. When Jane McKechnie was under examination she was asked by her counsel: “ Q. Had you ever any knowledge'prior to the 26th day of June, 1859, of the existence of such a deed? A. No, I did not.” This was four days before the two deeds were placed on record. What knowledge she then acquired, from whom, or what directions, if any, she gave in respect to the deeds, is not disclosed. During all of these years she knew of those deeds and took no action to enforce the rights now asserted in behalf of herself and children in the premises. These deeds and the bills o-f sale of the brewery property were executed within two weeks of each other and were undoubtedly given by Bobert McKechnie to divest himself of the title to the real estate and fixtures. What exigency caused these conveyances to be executed does not appear. These deeds are ancient ones, for more than thirty years on record,,.and the presumption is that they were duly executed and delivered, which was not rebutted by the bare statement of this interested witness that she had no knowledge of them prior to June 26, 1859. In addition to these deeds the affidavits of the foreclosure of the mortgage have been a matter of record since June 30, 1859, and if the title was in Jane McKechnie the title under the foreclosure is perfect. The affidavits show that Jane McKechnie, the grantor under these deeds, was personally served with the notice of sale. It is true she denies that she was so served, but as against her testimony is the affidavit of the attorney who effected the foreclosure, made in the usual way and placed on record. He knew of the existence of these deeds, for they were acknowledged before him, and it seems to me highly improbable that the attorney willfully and without any motive,.so far as it appears, committed perjury and placed the evidence thereof on record while the person injured thereby was living! If we assume that his affidavit is false we must also assume that James and Alexander McKechnie, his employers, were engaged in a scheme to defraud the widow and children of their brother out of their estate, and that the attorney was their instrument. The subsequent conduct of James and Alexander McKechnie from that time down to the times óf their deaths shows that they were not engaged in such a conspiracy. The sale of these premises was advertised to be made July 10, 1858, at a hotel in the village of Palmyra, where Jane McKechnie resided at the time, and the premises were sold on the day and at the place mentioned by public auction. This village then had less than 2,000 inhabitants, and it is difficult to believe that Mrs. McKechnie did not know about the sale, and Peddie could not have hoped that his perjury, if perjury he committed, would remain undiscovered. The finding that these deeds. were not delivered and that the notice of sale was not served, is to, my mind clearly contrary to the • weight of evidence. This is a very stale demand, and it- has long been a rule of the courts of equity that such demands will not be enforced. Courts of equity aid the vigilant and not the indolent. This maxim was expressed by Lord Camden in Smith v. Clay (3 Bro. Ch. 640, note) as follows: “ A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands where- the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence.” This is a well-settled rule of equity. (Snell Eq. [9th ed.J 41 Pom. Eq. Juris. § 418 ; Wood’s Lim. § 60.) The plaintiffs have ■ shown no reasonable excuse for sleeping on •their alleged rights for a third of a century, and until after nearly all of the actors in the transactions out of which this action arose have died. Legal titles which have been of record, and’ supported by undisputed possession for more than a generation, should not be overthrown by evidence of such little probative force as that which is contained in the record before us. The judgment should be reversed and a .new trial granted, with costs to abide the final award of costs.. All concurred, .except Adams, J., not voting. Interlocutory judgment reversed and a new trial ordered, with costs to abide the final award of costs.'