Bunce and others against Wolcott

Bunce and others against Wolcott. New-Haven, November, 1816. THIS was a bill in chancery to redeem mortgaged premises. ,. ,, ,,, „ , . ,, lhc case was as lollows. hururxer Berdan. jim., on the lGth of February 17(53, mortgaged the premises to David Ecekman and Jlbraiiam hymen, of the city of Mu'-Fork, to secure to them the payment of -128/. 1⅛. (id., Mw-Vork cur-miey, on the 20th of .March next ensuing. Benton remained in possession’.mill his death, which took ¡dace on the 9th of February 17 0-1. On the 251b of dlay 1764, Ruth Benton, o7 J ' the widow of the mortgagor, took letters of administration on his estate, and soon afterwards represented it insolvent, and procured a decree of probate appointing commissioners, and limiting a time for the exhibition of claims. On the 31st of October 1765, she exhibited to the court of probate an inventory of said estate, including one or two small pieces of land, hut not including the premises, which was accepted and recorded : and no further proceedings relating to said estate are to he found on the files and records of said court. On the 31st of March 1768, said Ruth, being then in possession, conveyed to Silas Beane all her right in the premises, in fee, with covenants of warranty and seisin. On the 26th of Jlpril .1770, Beckman and Lynscn, the mortgagees, conveyed the premises to said Beane, by a like deed. On the 2d of .Sprit 17 72, Beane conveyed, in like manner, to John Bobbins. From him the premises passed, by a quitclaim deed, on the 6th of January 1778, to his son, Levi Robbins ; who, on the 31st of March 1789, mortgaged them to Thomas Seymour, but on payment of the mortgage money, on the 6th of March 1798, he obtained a reconveyance. On the 23d of November ! 803, he mortgaged them wTith other lands to C. C. Beming and C. Barnard,; and on the 31st of JSugust 1808, he conveyed them with other lands to Elihu White, to whom Beming and Barnard released their mortgage. (hi the 1st of Becember 1814, White conveyed them with other lands to the defendant. Under all these conveyances, the grantees respectively, except the several mortga gees, took immediate possession, and remained in possession until alienation. ⅞saving ofthestat-ute of limit* ationsregar-entry into plies only to ity as exist-' «1 at the time the right of en- : : . try accrued, and not to any supervenient disability. Where it appeared, on an application to redeem mortgaged premises, by the heirs of the mortgagor, more than fifty years after his death, that the premises were omitted, while other lands were included in the inventory of his estate; that his estate was represented insolvent; that the widow and the mortgagees soon afterwards conveyed the premises, by several deeds, with covenants of warranty; and that the grantee went into immediate possession, and he, and those claiming under him, had, from that time, remained in undisturbed possession ; it was held by three judges, the others waiving any decision on the paint, that from those circumstances, with the great length of time, a release or extinguishment of the equity of re* demptkm ought to be presumed. Ehev.ezer Benton, jun., at his death, left a daughter, Elizabeth, who was horn on the 10th of June 1736, and w as married on the 19th of January 1775, during her minority, to Daniel Bunce, one of the plaintiffs, and has ever since remained his wife. The cause came on to he heard before the superior court .ai Hartford county, September lerm, 1816. The plaintiffs, in support of their bill, offered evidence of title in Benton, at the time he made the mortgage. The defendant's objected to any inquiry into Benton's title, on the ground that such enquiry was irrelevant, because the right of the mortgagor to redeem could not be enforced in chancery after fifteen ’■ears from the time Beane took possession, notwithstanding the minority and coverture oí the heir at law ; and because, under the circumstances of the case, such right must be presumed to have been released and extinguished. By consent of parties, the cause was continued, without any decision upon these points, to the next term, for the purpose of taking, in the meantime, the advice of all the Judges thereon. T. S. Williams and Johnson, for the plaintiffs, contended, 1. That the rigid of redemption in equity would continue as long as a right of entry at law would subsist, under similar circumstances ; and that, if the legal title had been in Benton at his decease, bis daughter’s right of entry would not be barred, as she then was, and ever since lias been, under the disability of infancy, or that of coverture. They relied upon the decision in Eaton v. Sanford, 2 Day's Ca. 523. as an authority in point, and entitled to the highest respect. They also referred to Cotlerell v. Dutton, 4 Taun. 82G. in the English court of common pleas, where the same construction of a similar statute was recognized. 2. That* no presumption of a release, or extinguishment 0f right, could be made against an infant, or feme-covert. ¡Sherman anil Trumbull, for the defendants, contend, 1, That the equity of redemption vas barred by an adverse possession of the mortgagees, and those who claim under them, for more than fifteen years. Skinner v. Smith, 1 Bay’s Ca. 124. Lockwood v. Lockwood, 3 Day’s Ca. 295. This rule is universal, with the exception of the rases specified in the proviso of our statute, tit. 97. c. 3. s. 4. The description of persons within the proviso, are those, and those only, who, at the time the right or title first descended or accrued, were within the age of twenty-one years, feme-covert, &c. And as to those persons, the saving is expressly limited to five years after the removal of the disability. They cited Stowel v. Lord Zouch, 1 Flowd. 355, 6. 361. 573. upon the statute of fines, 4 Hen. 4. c. 24. Doe d. George <$• ux. v. Jesson, 6 East 80. upon the statute of limitations, 21 Jac. 1. c. 16. Eager ux. v. The Commonwealth ⅝ at. 4 Mass. Rep, 182. upon a statute of that state limiting the time of bringing writs of error ; and the opinion of Smith, 3. in Bush v. Bradley, 4 Day’s Ca. 298. 307. ⅜* seq. upon the statute now in question. Upon a different construction, this would be no “ statute of repose.” 2. That the facts in this case induce a presumption ilia! there has been a release of the equity of redemption. 2 Wms. Saund. 175. Goodtille v. Baldwin, 11 East, 488. Eldridge v. Knott ⅝ at. Cowp. 214. Peake’s Ev. 23. Jones v. TuberviUe, 2 Ves. jun. 11. 3 Cruise’s Dig. 567. o) It may be useful to exhibit, at one view, our statute limiting the right of entry upon land, and the corresponding parts of the English statute of 21 Jac. 1. c. 16. Conn. Stat. tit. 97. c, 3. Sect. 2. And for quieting of men’s estates, and avoiding of suits : It is enacted, &c. Stat. 21. Jac. 1. c. 16. Sect.. 1, For quieting of men’s estates, and avoiding of suits, be it enacted, &c. that all writs of formedon in. descender, formedon in remainder, and formedon in reverter, at any time hereafter to be sued or brought, of, or for any manors, lands, tenements or hereditaments, whereunto any person or persons now hath or have any title, or cause to have or pursue any such writ, shall be sued or taken'within twenty yeara next after the end of this present session of parliament And after the said twenty years expired, no person or persons, or any of their heirs, shall have or maintain any such writ, of or for any of the said manors, lands, tenements or heredita-ments ; and that all writs of formedon in descender, formedon in remainder, formedon in reverter, of any. manors, lands, tenements or other heredita-ments whatsoever, at am1 time hereaf- That no person or persons that now have any right or title of entry into any lands, tenements or hereditaments within this colony, now withheld from him or them, shall thereinto enter, but within three years after the tenth of June next, or within fifteen years next after any other title of entiy accrue : and-that no person or persons shall, at any time hereafter make entry, into any lands, tenements or hereditaments within this colony, but within fifteen years next after his or their right or title, which shall hereafter first descend or accrue to the same ; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disenabled from such entry after to be made. Sect. 4. Provided nevertheless, that any person or persons that is or shall be entitled to, or that hath or shall have such right or title of entry into any lands, tenements or hereditaments in this colony, be, or shall be at the time of the said right or title first descended, accrued, come or fallen, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas, that then such person and persons, and his and their heir and heirs, shall or may, notwithstanding the said three years, or the said.fifteen years be expired, bring his action, or make his entry as he might have done before this act; so as such person or persons, his or their heir or heirs, shall within five years next after his or their full age, discoverture, or coming of sound mind, enlargement out of prison, or coming into this country of J'few-England, or territory of .Yen'-York, or death, take benefit' of and sue forth the same, and at no time after the said five years. ter to be sued, or brought by occasion or means of any title or cause hereafter happening, shall be sued or taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years : And that no person or persons that now hath any right or title of entry into any manors, lands, tenements, or hereditaments now held from him or them, shall thereinto enter, but within twenty years next after the end of this present session of parliament, or within twenty years next after any other title of entry accrued; and that no person or persons shall, at any time hereafter, make any entry into any lands, tenements, or hereditaments, but within twenty years next after his or their right or title, which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made; any former law or statute to the contrary notwithstanding. Sect. 2. Provided nevertheless, that if any person or persons that is or shall be entitled to such writ or writs, or that hath or shall have such right or title of entry, be, or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of one and twenty years, feme covert, non compos mentis, imprisoned or beyond the seas, that then such person and persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action or make his entry as he might have done before this act; so as such person and persons, or his or their heir and heirs, shall, within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same, and at no time after the said ten years. [MAJORITY — Swist, -Ch. J. Edmund, J.] Swist, -Ch. J. Courts have gone great lengths in presuming grants, where it conduced to justice, and quieted men in their possessions. Mere length of time less than what is prescribed by statute, and in eases where the statute operates, can never be a presumptive bar. Length of time, accompanied by circumstances, which render it probable a grant -was made, may be a presumptive bar. So length of time, unaccompanied by such circumstances, may be a bar where there is no statute of limitation, in analogy to statutes in similar cases. Where a statute limits a time, it is a peremptory bar, and may be pleaded; but where there is no statute, length of time is matter of presumptive evidence to be left to the jury, and may he rebutted by circumstances which go to disprove the probable existence of a grant. No presumption of a grant could be made where it would be impossible ; as where the supposed grantor had no legal right or capacity to make the grant. In this case, it is not necessary to presume any act to have *,ecn d°nc by an infant, or feme-covert, to quiet the long possession of the defendant, and those under whom he claims. From the circumstance that the land in question was not comprehended in the inventory of Benton’s estate, it is highly probable that he had released the equity of redemption in his lifetime, and the deed had been lost. If he did r:nt release it, then it is probable, as the estate was insolvent, it was disposed of in due course of law for the payment of the debts, and the evidence has been lost. This is coniirmed hv the circumstance, that the mortgagees gave deeds of warranty of the land, and the purchaser went, info immediate possess ion ; which would not probably have been done, if the title had not been quieted. To this is to be added the great length of time which has elapsed ; and it cannot he supposed, that the petitioners, some of whom were sui juris, would have, been so long silent, if it had been understood that they liad any right. Under these circumstances, there can he no doubt: the equity of redemption was extinguished ; and though there is no proof of a conveyance, yet we are warranted to presume it. With respect to the other point, it may be remarked, it has been long recognised in this state, that a statute of limitation can never begin to run during the existence of a disability, though when it once begins, it will not be interrupted by an intervening disability. If a female should he an infant w hen the title accrued, ami should intermarry before she comes of age, she would he within the saving of the statute till she should become discovert; but if being of full age when the title accrued, she should intermarry within fifteen years, she would not be within the proviso of the statute ; so that the same person, in certain cases, could take advantage of two successive disabilities. This doctrine has been sanctioned by a single decision in this Court; (Eaton v. Sanford, 2 Day’s Ca. 523.) but, I apprehend, it is not warranted by a sound construction of the statute. The saving danse is expressly limited to disabilities existing at the time the title accrued. Nor is the proposition correct, that the statute never begins to run against a person under a disability. suppose that the party claiming is an infant when the title accrues ; if fifteen y ears run duping his'infancy, he has but Jive years after he comes of full age to make his entry. This clearly shews, that the statute operates against him during the disability. Indeed, the statute always begins to run against a man the moment he is disseised, whether he is under a disability or not : all the difference is, that an additional tittic is allowed where a disability exists, after the removal of it. The correct role, sanctioned by all the authorities, is, that when the statute once begins to run, a supervenient disability will not stop it. Hence it follows, that no person can ever take the benefit of two successive disabilities : a construction strictly conformable to the letter and meaning of the statute. But in the construction heretofore given in this slate, a succession of disabilities can be united ; oh! claims may be preserved, till all evidence respecting them is obliterated ; and the beneficial objects of the statute may be defeated. It appears to me, that the case of Eaton v. Sanford is a departure from principle j that the construction given to the statute is not warranted by the fair import of it; and that it ought not to be considered as possessing the author] (y of a precedent. I am of opinion, on both points, that the petition ought not lo be sustained. Edmund, J. Two questions are presented for the consideration of the court. One is, whether from lapse of time, and under all the circumstances attending this case, the court may and ought to presume a grant, in order to quiet the respondents in their possession ? I do not consider it necessary to del ermine this question, as the court are unanimous on the, other ; and that is sufficient to decide the case. The other is, whether the proviso, or saving in the statute of limitations against the right of entry into lands, &c. tit. 07. c. 3, extends to supervenient disabilities, or to such only as exist at the time the right of entry accrues ? To decide this question, there appears to me no other difficulty than that which arises from the necessity to deny the propriety of a former decision, (Sanford v. Eaton, 2 Day’s Ca. 523.) — a necessity always to be regretted $ orto depart from what I considered, at the time the ease of Bv.sf; and wife & al. v. Bradley, 4 Day’s Ca. 298. was argued, ami still consider, as the plain and obvious import of the statute. By the second section, it is enacted, that “ no per son or persons shall, at any time hereafter, make entry into any lands, tenements or hereditaments within this colony, but within fifteen years next after his or their right or title, which shall hereafter first descend or accrue to the same, Ac.” In this section of the act there is no saving clause for disabilities of any sort; nor in any other part of the statute is there any saving against its positive provisions, except what is to be found under the proviso which forms the fourth section. To this, then, we must look, to discover, not who ought to he, but who arc, the subjects of it, and how far their exemption extends. Examined with this view, it appears to me difficult to perceive how it can possibly be construed to apply or extend to any other than those, who, at the time of passing the act, had, or thereafter should have, “ a right or title of entry into any lands,” Ac. and who “ be” (that is, at the time) {< or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of twenty-one yearsor shall, at the time of said right or title first descended, accrued, Ac. be under some one or more of the disabilities enumerated, and shall prosecute their claims within five years next after the disability or disabilities, which existed at the time the right or title-first descended, Ac. are removed. I say, “ disability or disabilities,” because a person may be under several of the disabilities specified, at the time the title accrues; and in such case, the person so situated may avail him or herself of either ; and it will always be a suificieut answer to an objector to such an election, to say, the disability on which 1 rely is pointed out by the proviso : it existed at the lime my right or tille accrued ; I have prosecuted my claim within the time allowed after its discontinuance, and come within both the letter and spirit of the law. But- where a single disability only exists at the time the right of entry accrues, and the five years after the discontinuance of llial disability have elapsed, the statute immediately attaches, and the party so neglecting to prosecute can never avail himself of any other or supervenient disability, because the statute recognizes no other than such as actually existed, or should exist. at the time when the right of entry first commenced ; and every after disability may be said to want, and is, in fact, destitute of that essential qualification. I should advise that judgment be given for the respondent. [CONCURRENCE — Smith, Baldwin and Goddard, Js. HosmeR, J.] Smith, Baldwin and Goddard, Js. concurred with J udge Edmond in waiving a decision upon the question of presumption | and were also of opinion with him and the rest of the court, that the suit not having been commenced within five years after the termination of the disability which existed at the time the title first accrued, no supervenient disability would save the case from the limitation of the statute. BkainaRD, J. Concurred with the Chief Justice on both points. HosmeR, J. The petitioners, heirs of the mortgagor, make their application to redeem mortgaged estate. The defendant, a purchaser for valuable consideration, opposes on this ground, that the mortgagees and their assigns, have, for almost half a century, been in the undisputed possession of the estate, using it as their own. It is stated by the parties, Shat when the title first accrued, Elizabeth Bunce, one of the petitioners, was a minor, and afterwards, before she arrived to lawful age, intermarried with her present husband, and has remained under coverture ever since. If Elizabeth was, by law, obliged to enter on the premises, within five years after her attaining the age of twenty-one, her right has long since been barred. The statute for quieting men’s estates and avoiding suits, having limited the period of entry on property withheld, to fifteen years, by w ay of exception provides, that if the person w ho has right of entry shall, at the time of the right first descended or accrued, be within the age of twenty-one years, feme covert, non eompos mentis, imprisoned, or beyond seas, such person shall iiave five years in w hich to make entry, or bring his action, after the removal of his disability. Of consequence, it lias been argued by the petitioners, that as Elizabeth, at the descent of the title in her, was a minor, and before she attained full age, intermarried, and has ever since remained under coverture, the law has not commenced its operation against, licr. This supposed consequence I utterly deny, j£ js a conclusion without: any promises to authorize it, The proviso of The statute, regards, solely and exclusively, the disabilities existing at the time, of the right or title first accrued. “ If this disability be once removed,” to use the J words of rIshhurst, J. “ the time must continue to run, notwithstanding any subsequent disability, either voluntary or involuntary.” This construction is authorized by ⅜lie strongest; reasons. It is in accordance with the explicit and intelligible expressions of the statute, which, in so many words, alone embrace disabilities existing at the time of the. right or title first desecrated or accrued. At the same time, it best comports w ith private .justice anti public convenience. It allows a sufficiently extended range to the act made fee quieting possession, and preventing unreasonable delay in the assertion of claims. It. a\oids the intolerable inconvenience of accumulated successive disabilities, which, for an interminable period, might subvert, titles apparently well established, and produce the most: ruinous instability. And what is of no small importance, it is in perfect conformity with the judicial decisions of other states. 3 Bac. Mr. 206. (Wils. edit.) Stowel v. Lord Zouch, Plowd. 356. Doe d. Count Durourc v. Jones, 4 Term Rep. 300. Doe d. George & ux. v. Jesson, 6 East, 80. Eager & ux. v. Commonwealth al. 4 Mass. Rep. 182. From the facts agreed on, T am likewise of opinion, that the Court is authorized to presume a grant of the equity of redemption to the original mortgagees, or to Silas Deane. their grantee. The mortgage in question was made in February 1765. In the year 1764, Ebenexer Benton jon., the mortgagor, died. Ruth Benton, his wife, became administratrix of his estate, and represented it insolvent. In March of the year 1768, she, by a deed of warranty, conveyed the estate mortgaged, so far as was in her power, to Silas Deane. In the year 1770, the mortgagees, by a similar deed, granted the premises to the same Silas Deane, who immediately, took the possession. From that period to the present moment, lie, and his assigns, have remained in the possession, uninterruptedly, and without a question. From these facts the inference is fairly warranted, that the equity of redemption was transferred. After the lapse of fifteen years, if the mortgagee is lit possession, the mortgagor is riot permitted to redeem, unless the deiav is satisfactorily accounted for. Skinner v. Smith, 1 Day’s Ca. 127. On the principle of quieting possession, “ for the furtherance of justice and the sake of peace,” the court, after a considerable length of time, will presume a grant. Eldridge v. Knott & al. Cowp. 214. Knight v. Halsey,, 2 Bos. & Pul. 206. 1 Pow. Mort. 408. Jackson, d. M’Donald v. M’Call, 10 Johns. Rep. 377. Nothing can be more reasonable. For example, “ it cannot be supposed that any man would suffer his neighbour to obstruct the light of his windows, and render his house uncomfortable, or to use a way with carts and carriages over his meadows, for twenty years successively, unless some agreement had been made between the parties to that effect, of which the usage is evidence.” Fhill. Ev. 120. As little can any' one presume, that for more than forty years, the mortgagees and their assigns, should have possessed the premises exclusively, and absolutely, as their own ; that it should have been sold by deeds of warranty, soon after the death of the mortgagor, by Ms wife and others ; and from that period to the present, that the heirs of the mortgagor should have looked on, without the interposition of any claim ; and notwithstanding this, that the equity of redemption should remain. Long continued possession implies title. If there were a different right, the probability is, it would have been asserted. It is for the interests of justice that it should be so ; and a conviction is produced by it, which the mind cannot resist. It would be monstrous, if nearly half a century having elapsed, after valuable improvements and repeated purchases, the title, apparently' so stable, should be subverted by a latent claim, in opposition to every reasonable calculation. Nothing short of statute disabilities, or other circumstances equivalent, ought, under such circumstances, to repel the presumption of a grant. The petitioners rely on the impossibility of the thing. Although the estate does not of record appear to have been insolvent, l think it, may be inferred, and that the deed with warranty given by the administratrix, was intended to transfer the equity of redemption. But, let it be admitted, that this supposition is incorrect, and that the object of the deed was, to grant the estate of Ruth, bey ond the boundaries of the mortgage ; what opposes the possibility, that the equity was released to the mortgagees by the mortgagor ? This would he in perfect accordance with their grant of the premises in fee simple, to Silas Beane. Resides, after Elizabeth Bunce attained the age of twenty-one, which was in the year 177", may not a deed from the heirs to the tenant in possession, he fairly presumed i Nearly forty years have elapsed, on which to found this presumption. To this it is replied, that Elizabeth Bunce was under cov-erture. What then ? This, under the positive provisions of the statute, if it existed when the title first descended, would have constituted a disability. But, upon the point of presumption, 1 do not know that it is entitled to any weight. Elizabeth and her husband were capable of conveying the property ; it was their interest to do it, on sufficient consideration ; and the facts in this case, warrant the presumption of their having done it. Trumbull, J. being related to the defendant’s grantor with warranty, and Gould, J. having been of counsel in the cause, gave no opinion. Judgment to be given for the defendant.