Randall v. Raab , 2 Abb. Pr. 307 ( 1855 )

Cowles, J.-

I am unable to see how the Statute of Limitations can operate to bar this action.

Mrs. John D. Provoost was the ancestor through whom these plaintiffs claim. She died seized of the premises in 1810, leaving her surviving her husband and several children. John D. Provoost, the husband, was tenant by the curtesy consummate upon her death, which particular life estate continued in existence until his death in 1841.

It was during the existence of this life estate that the dissei-sin under which the defendant sets up his adverse title, took place by the entry of Bishop, or at least by his assumed conveyance in fee to Ackley, in 1815. When that disseisin took place, the heirs of Mrs. Provoost held only the reversion subject to the determination of the life estate. From 1810, when their mother, Mrs. Provoost, died, including the time of the disseisin in 1815, down to 1841, when John D. Provoost himself died, there was no time when the heirs of Mrs. Provoost possessed any right of entry upon the premises, or ability to bring ejectment.

The disseisin took place after the reversion had vested, but during the existence of the tenancy by the curtesy.

When disseisin takes place after descent cast but during the existence of some particular estate, which intervenes and prevents any right of entry on the part of the reversioner until the determination of that particular estate, I do not understand that the statute of limitations begins to run against the rever-sioner until such outstanding particular estate is determined. In such cases the reversioner and the remainderman each have tw-enty years after the determination of such particular estate, or in other words, twenty years after the commencement of their right of entry, to bring suit.

This is not the case when the fee vests, but on first vesting-finds the one in whom it vests under disability by reason of infancy, coverture, &c. (Code, § 88.) In that class of cases, the right of immediate entry commences eo instanti the vesting of the fee — but as the one in whom it vests is under disability to sne, the law gives ten years after disability removed in which to prosecute. (Jackson v. Sellick, 8 Johns., 262; Jackson v. Johnson, 5 Cow., 74; Moore v. Jackson, 4 Wend., 58; Carpenter v. Schermerhorn, 2 Barb. Ch. Rep., 314).

But in cases where the particular estate exists -when the dis-seisin takes place, and the reversion has also vested before the disseisin, there the statute will not begin to run against the reversioner or remainderman until the determination of the particular estate. And the reason is both obvious and just— for there has been no time when any one except the particular estate man had a right of entry against the disseisor so long as such particular estate was outstanding. The laches of the life estate man shall not be charged in such cases to the reversioner or remainderman, for neither he nor any ancestor or predecessor whom he represents, or under whom he takes, has, until the particular estate was determined, possessed any right to enter or bring suit. (Jackson v. Schermerhorn, 4 Johns., 390 ; Jackson v. Johnson, supra). Although on the death of Mrs. Pro-voost the reversion was cast upon her heirs, yet no right of entry descended until the tenancy by the curtesy terminated, in other words there was no seisin in them until that event took place. (Jackson v. Sellick, supra.)

ITad this disseisin taken place during the lifetime of Mrs. John D. Provoost, plaintiff’s ancestor, and after the estate had vested in her, then, as the right of immediate entry would have existed in her, the statute would have begun to run both against her and her heirs; but as she was under coverture at the time her estate vested, the law wmuld also, in that case, have given her ten years after disability removed in which to sue, and she dying before her husband, her heirs would also have had ten years after termination of her husband’s tenancy by the cur-tesy in which to sue. But that is not the case here. The dis-seisin took place when no one but the life estate man possessed any right of entry, and therefore these plaintiffs had twenty years from the time their right of entry first accrued (which was in 1841) within which to enter or bring ejectment.

But on the other branch of the case this suit must fail.

It is not shown or claimed on the part of the plaintiffs, that the moneys secured by the mortgage given by John D. Pro-voost and wife to Bishop, and which became due in 1810, have ever been paid, or were all raised by the foreclosure sale in 1815.

Bishop therefore is to be regarded as a mortgagee acquiring possession by and entering under his mortgage after default in the payment of the same. In 1815 he could, after such default, have acquired possession by ejectment, although such remedy is now abolished. (2 Rev. Stats., 312, § 57).

Bishop’s rights, however, as mortgagee in possession after default, had all accrued before, and were not divested by, the adoption of the Revised Statutes, and having thus acquired possession, he was authorized by law to protect himself in possession under his mortgage until the whole moneys thereby secured were paid, or the time for redeeming had passed. (Van Duzen v. Thayer, 14 Wend., 233 ; Phyfe v. Riley, 15 Wend., 248.)

It is unnecessary to discuss the question raised in Fort v. Burch, (6 Barb., 248), by Paige, J., whether a mortgagee acquiring possession since the Revised Statutes, can protect his possession under his mortgage after default. It is enough for all the pui-poses of this suit that in 1815 Bishop could, and that too whether he entered by consent or under claim of title. (Van Duzen v. Thayer, 14 Wend., 233.)

This right to hold, which vested in Bishop, has passed by his grant to those who hold under him. (Jackson v. Winckler, 10 Johns., 480 ; Jackson v. Delancey, 11 Johns., 365 ; 13 Johns., 537; Jackson v. Bowen, 7 Cow., 13).

The character of his title was that of an absolute and unqualified right to the possession of the premises, and the enjoyment of the rents, issues, and profits forever, subject to be defeated by a decree for redemption under the mortgage. Such an interest is an estate in the land. It is in effect a defeasible fee' — a fee subject to be defeated by a redemption only.

Surely such an estate is the subject of sale, and passed under the successive grants from Bishop to the defendant who claims under him. Three successive grants have also carried to the defendant the mortgage itself, as one of the incidents or muni-ments of his title. (Jackson v. Bowen, 7 Cow., 13).

Ejectment to recover the premises before redemption under the mortgage will not lie. This being conclusive of the case, it is unnecessary to discuss the other questions raised on the argument. The judgment below must be affirmed with costs.^*

* Mr. Townshend subsequently moved, in this case, at General Term, February, 1856, for an order that the appeal be re-argued, on the ground that the opinion showed the judge who pronounced it was laboring under the error of supposing this to be an action of ejectment, and subject to the rules which governed that action. That the opinion “ gave the major premise and conclusion of a syllogism of which the suppressed premises must be ‘this is an action of ejectment,’ and as that was manifestly false, the conclusion was necessarily false.” The motion was denied.