Majority
p. 365Jackson, ex dem. Livingston and others, against De Lancey and Russel. ALBANY, August, 1814.
Headnote
older to swims the payment of the »■, oxecuted to I! a mortgage on witi.ia tiieproy°!£ ‘paft'of "eve*1 refmS to by name, and pat t, comprising the promises in qnestion,pa»ingunckure, ‘¿mi mo^Mm'.t'the fnte.r- ®-.<lic1'’ ”!l,Jjllc”',‘11 in certain pa--An;, AcreAmisoeverf to be turned into money by her executors, and to be equally divided among her five children, who were to be tenants íj¿ common infec of ike realty, until such sale and distribution.In 1771, belore the death of B. the mortgage had become forfeited, and a judgment had also been recovered by BJagainst A., which was revived in 1775, and in 1788 was again revived by thee xecutors of B against the heirs and tertenants of A., and execution issued thereon, and the premises in question sold and conveyed to V., who had married one of the daughters and devisees of B., the validity of which conveyance, however, was questionable, and was not regarded as part of the defendants’ title. Two other of the devisees of B. conveyed their share of the premises, thus purchased, to C. and in 1790 he took possession, and the tenants attorned to him.
In an action of ejectment, by persons claiming under A., it was held that the debt and mortgage passed by the general words in the will of B.; that G. must be deemed to have taken possession on behalf of the devisees, for the forfeiture of the mortgage, and that the attornment was valid.
1 hatalthough the mortgage was forfeited as long ago as 1771, it was still outstanding, the presumption of payment beingrebutted by the proceedings had to revive the judgment, (which judgment had bren recovered on two of the bonds recited in the mortgage,) and the sale under the execution, notwithstanding these proceedings and that sale might have been defective; and that from 1771 to 1790, when C. look possession, after deducting the period of the revolutionary war, there had not been su (licit nt. time on which to found a presumption, and that, consequently, the mortgage was a good outstanding tille, and sufii» dent to protect the defendants’ possession, independent of ihe sheriff’s deed.
Words of general description, in a deed or mortgage of land, are sufficient to pass the grantor’s estate; thus, a grant of lands in the patent oí B., and of all other lands belonging to the grantor, in the province of JYew-York, will pass the residue of his lands in Nero- York.
But it seems that in a sheriff’s deed the land must be defined.
A devise of the testator’s estate generally passes both real and personal estate, and may include a debt and mortgage.
THIS was an action of ejectment for lands, in the town of Plattckill, in Ulster county, tried before Mr. Justice Van Ness, at the Ulster circuit, in November, 1812. 7 3
e The plaintiff’s counsel, in support of the title of the lessor, r , 1 • . gave m evidence a lease of the premises m question, tor 21 years, from Nathan Miller to Andrew Gee, dated the 1st of March, 1785; a lease from Nathan Miller to Cornelius Gee and James Owen, dated the 1st of April, 1802. In the last-mentioned lease, the premises are described as the “ certain farms 3 r or tracts of land whereon the said Cornelius Gee and James . Owen now live and occupy m the precinct of Marlborough, being the property of William Alexander, Earl of Stirling, but now in the care and possession of the said Nathan Miller.”
It was proved, by parol, that Nathan Miller always declared and admitted the tract of land, about 1,000 acres, in his possession, of which the premises in question were a part, to be the property of Lord Stirling. It was also proved that Catharine Neilson, the wife of William Neilson, who were also lessors, was the daughter of Lord Stirling, apd during the revolutionary
p. 366
war married William Duer, Esq., who died in the spring of the. year 1799.
The defendants then gave in evidence, as follows:
!• An exemplification of a judgment in favour of Anne Wad-dell, against William Alexander, Earl of Stirling, for 7,774 pounds, signed the 28th of March, 1771.
2. An exemplification of a judgment reviving the former judgment, in favour of the executors of Anne Waddell, against Lord Stirling, signed the 23d of August, 1775.
3. An exemplification of a judgment, reviving the same judgment, in favour of the executors of Anne Waddell, against the heirs and ter tenants of Lord Stirling, signed the 7 th of May, 1788, and a scire facias, directed to the sheriff of NeivYork.
4. An exemplification of a test. fi. fa. on the last-mentioned judgment, directed to the sheriff of ■ Ulster county, tested the 30th of April, 1788, with the sheriff’s return endorsed thereon, that he had levied and sold the land and tenements of William Alexander, Earl of Stirling, deceased, in his bailiwick, to the amount of one hundred pounds.
5. A deed for the same lands, dated the 10th of June, 1788, from the sheriff of Ulster to John Taylor. This deed recited the test. fi. fa., sale at auction, &c. and conveyed to Taylor, as the highest bidder, a tract of land near the Wallkill, particularly described, containing 3,000 acres of land, and the equal moiety of several lots, particularly described in the Hardenbergh patent, the whole containing, by estimation, about 20,262 acres.
The premises in question are not particularly described, but are supposed to pass under the general description which follows the description of the tracts mentioned in the deed, as follows : “ And, also, other the lands, tenements, and hereditaments whereof the said William, Earl of Stirling, was seised on the said 26th of June, 1771, or at any time afterwards, within the county of Ulster, whether held in severalty, or in common with others, and all the estate, right, title, &c. of the said William, Earl of Stirling, of, in, or to, the same.”
Anne Waddell left five children, William, Henry, Mary, Anne, and Sarah, Mary, the eldest daughter, married John Taylor, Anne married Eleazer Miller, and after his death John Taylor, and Sarah married Joseph Taylor. John Taylor died in 1803
p. 367
er 1804, and left six children, of whom Anne De Lancey, one of the defendants, is one. William Waddell, the eldest son of Anne Waddell, is still living, and resides in England.
6. The defendants then gave in evidence a mortgage from Lord Stirling to Anne Waddell, dated the 2d of Decembers 1770, reciting several debts due to her, to wit, by a bond executed by Lord Stirling and Philip Livingston, in 1763; a bond .executed by Lord Stirling himself, in 1766, which was secured by a mortgage on a house, &c., dated the 2d of December, 1766; and, also, a bond bearing even date with the present mortgage, the whole amount of which debts were 5,0432. 16s, for further securing the payment of which, with the interest, he mortgaged “ all and every those shares, lots, and parcels of land, and all other, the lands, tenements, and hereditaments and estate or estates whatsoever of the said William, Earl of Stiring, whereof he is seised in common, or separately and alone, in those several tracts of land called the patent of Cheesecocks, in Orange county, RichbelPs patent, in the county of West Chester, in Provoost’s patent, and Minisink patent, in the county of Ulster, and in Hardenbergh patent, in the counties of Albany and Ulster; and all other the lands, tenements, and hereditaments belonging to the said William, Earl of Stirling, within the province of New-York.” By the proviso or condition, the mortgage was to be void on the payment of the sum of 5,0432. 16s. on or before the 2d of December then next, with interest, &c., and the mortgagor covenanted to pay the money, &c. and that the mortgagee and her heirs, &c. might at all times, after default made in the proviso, peaceably and quietly enter into, have, hold, occupy, possess, and enjoy the premises, without any let, &c. It was admitted that the premises in question were not included in any of the patents particularly mentioned in the mortgage, but Lord Stirling being seised of the premises in question, at the date of the mortgage, they were supposed to pass under the general clause contained therein.
7. A probate of the will of Anne Waddell, dated the 29th of March, 1773, in which she directs her executors “to collect, with all convenient speed, the one third part of the estate left her by her husband, and all the interest money since accrued, &c. and all outstanding debts of every kind, and this, with all ihe rest of my estate in Hardenbergh patent, and elsewhere.
p. 368
whatsoever and wheresoever, shall be turned into money by my executors, and be equally distributed among my five children, share and share alike, who are to be tenants in common in fee °f the realty, until such sale and distribution shall be madeand the testatrix gives to each of her executors, 75 pounds for-his trouble.
8. A deed from Henry Waddell to John Taylor, dated the 2d of February, 1788. A deed from Eleazer Miller and wife to John Taylor, dated the 21st of February, 1789.
9. A power of attorney, dated the 12th of February, 1789, to Ickabod Williams, executed by Samuel Brunson, as the attorney and agent of John Taylor, authorizing him to take possession of the tract of land of 1,000 acres, of which the premises in question are part, for J ohn Taylor. And it was provedby a witness, who lived near the premises in question, that at the time the above-mentioned power of attorney was executed, Russel, one of the defendants, was in possession; that Brunson, Nathan Miller, Russ.el, and several more of the tenants on the same tract, were also there. Brunson acted as the agent of Taylor, and Miller, after some difficulty, agreed to give up the possession of the whole tract to Brunson; and all the tenants present, including Russel, the defendant, came in under Taylor, and have held under him ever since.
The defendants gave in evidence an agreement, dated 7th of June, 1791, and executed by the tenants, under their hands and seals, by which they acknowledge themselves to hold possession under John Taylor; and it was admitted on the part of the plaintiff, that from the date of that agreement, the lands have been held under John Taylor and his heirs.
The counsel for the plaintiff then produced and proved the last will and testament of William Earl of Stirling, dated the 29th of January, 1780, by which he gave all Iris real and personal estate to his wife Sarah ; to her, her executors, administrators and assigns, and in case of her death, without giving, devising, or bequeathing by will, or otherwise selling or assigning the same, See, then he devised to his .daughter, Lady Catharine Fuer, all such, estate, and all such parts thereof, as shall remain undevised or unbequeathed by his wife.
At the request of the defendants’ counsel, the plaintiff also produced the will of Sarah Alexander, widow of Lord Stirling; dated the 27th of November, 1804, by which, after giving some
p. 369The mortgage was payable one year after its date, the 2d of December, If 71. From the lapse of time, therefore, the presumption is, that the debt was paid. It may, perhaps, be said that the judgment was on the bond, for the security of which the mortgage was given, and which judgment has been revived; but the judgment and mortgage are for different sums; and there is a difference also in the parties, one of the bonds being given by Lord Stirling, jointly with Philip Livingston. The revival, therefore, of the judgment does not repel the presumption that the mortgage has been paid. Again, the mortgaged premises did not pass by the will of Anne Waddell. It is settled, that by the general words, “ lands, tenements, and hereditaments” in a devise, a mortgage in fee, though forfeited, will not pass, if the testator has other property to which those words will apply.[16] A mortgage, though in name and appearance it would seem real estate, is, in reality, a mere pledge, and passes as personal property. On principle, a mortgage, where the mortgagee is out of possession, ought never to pass as real property. If it was a mere pledge, there was no
legacies, she devised all the residue of her estate, real and personal, whatsoever, to Brockholst Livingston and Mathew Clark-son, as trustees of the several trusts expressed in the will.
A verdict was taken for the plaintiff, by consent, subject to the opinion of the court on the above case ; the written documents to be referred to on the argument.
The following points were raised by the counsel for the plaintiff:
1. That the proceedings to revive the judgment against the heirs and tertenants of Lord Stirling were void.
2. That the premises in question did not pass by the sheriff’s deed to John Taylor.
3. That the attornment of Miller and Russell to John Taylor was void.
4. That the lessors are not barred by adverse possession.
5. That the mortgage by Lord Stirling to Anne Waddell cannot be set up as an outstanding title.
As the opinion of the court is chiefly confined to the validity of the title under the mortgage, it is not necessary to state particularly, the arguments of the counsel on the other points.
T. A. Emmet, (J. Duer, same side,) for the plaintiff.
p. 370possession under it. The children of Mrs. Waddell had no right to enter as decisees; nor can their conveyance of the property be operative. again, the testatrix directs that all the children shall hold as tenants in fee, until a sale by the executors.[16] Now William Waddell, her eldest son, never joined in the conveyance; the lessors, therefore, must recover one fifth part. By the statutc,[15] all attor~iments by tenants to strangers are declarod void, unless made pursuant to some judgment at law or decree in equity, or with the privity or consent of the landlord or lessor, or to a mortgagee after th~ mortgage is forfeited. The attachment, then, should have been to the mortgagee, or to the legal representative of the mortgagee. Now William Waddell was the heir at law of the mortgagee. Nor was the attorlinient made with the consent of the land~ lord. Nathan Miller was not the landlord; lie was himself the tenant of Lord Stirling. He was not the owner of the revcr~ sion or lord of the fee. The recital in the deed of attornment shows that he did not pretend to be landlord. It would be in fraud of the statute to allow a tenant to surrender a lease to a stranger, and then attorn to another and take a new lease: The statute is remedial ; and should he liberally construed. Unless the possession can he connected with the legal title under the mortgagee, there can be no adverse possession. The possession here commenced in tenancy or in fraud. Should it be said that it is enough if the party in possession claims title, though the title may be bad,[10] yet, still, the possession must be adverse from the beginning; but a title commencing ,ifl tenancy cannot become adverse. Again, here was a lease and possession under it, and Lord &irling, or his heirs, had no title to the possession until aftei the lease had expired. It is true, the lease would be forfeited by the attornment, yet the lessor is not bound to take advantage of a forfeiture.[11] Again, Lady Stirling had a particular estate for life[12] in the premises, and1 until the determination of that estate, there can he no adverse possession.[13] It will, perhaps, be said, that the defendants have shown a title out of the lessor of the plaintiff; and that is enough. But if the attornrnents to Jolui Ta~Jlor were void, the title of the
p. 371■defendants is derived from the tenants, and they can take no other or better title than such tenants possessed. Though the case of Barlow v. Pegge[16] has since been overruled,[15] yol the principle there laid down by Bulle, J. lias never been disturbed. lie lays it down as clear law, that a tenant cannot set up the title of a mortgagee against the mortgagor, because he holds under the mortgage, and has admitted his title. This principle was recognised by this court, in Hitchcock v. Harrington,[10] and Collins v. Torrty.[11] In the last case, the court went even further, and would not allow a stranger to defend ids possession, by showing a subsisting mostgage by the lessor. We do not think it necessary, at present, to draw into discussion the validity of the proceedings under the judgment, or of the sheriff’s sale; nor to inquire as to the precise nature of the estates derived by Mrs. Alexander, or Eira. Duer, under the will of Lord Stirling. The strong, and, as we contend, unanswerable objection to i'lie plaintiff’s right of recovery is, that there is a subsisting and outstanding forfeited mortgage by Lord Stirling, and which is held by the defendants, which must be a complete shield and defence to them, until the lessors of the plaintiff come in and redeem the mortgage. There were three bonds of Lord Stirling, one of which was already secured by a previous mortgage, and the mortgage In. question was a security for the two others, as well as the first. The judgment was, rao doubt, for the amount of those two bonds. The premises ta question are not included in the parcels of land particularly described, but passed under the general words. Such general description has been held good in England., if a man bargains and sells all his lands in D.} all his houses, woods, S:c. will pacs.[12] Here is a mortgage in fee, forfeited and outstanding, which may be used by the tenant in possession, (though he cannot connect himself with the mortgagee,) to defend that possession.[13] But John Taylor, and the defendants under him, are, in fact, connected with the mortgagee. The mortgagee died, leaving live children. Henry Waddell, one of the heirs, conveyed to John Taylor, tire Sd of Fehman’, U38. The sheriff’s deed
I. Emoit, and S. Jones, jun. contra.
p. 372was dated the 1 Oth of June, 1788. Taylor entered under the title derived from the mortgagee, not under the sheriff’s deed. The deed re cites the mortgage, and conveys all the right, ti-tie, and interest of the grantor under it. Similar deeds were executed by two other children, so that Taylor, beside the right of his wife, held the rights of three of the heirs of the mortgagee. If Mrs. Waddell had died without a will, her eldest son, William, would, as her heir at law, have taken all her estate; but as trustee to the executors, or persons entitled to the personal estate, who are all the children. If there had been no will nor debts, and the personal representatives had taken .possession of the mortgaged premises, could the mortgagor turn them out of possession, merely because the heir at law had the legal estate ? But there is, in fact, a will, which establishes a connexion between the defendants and the mortgagee. The word estate is, used by the devisor in its most extensive sense. She devises all her estate to her five children. This included the debt and mortgage of Lord Stirling, It was the manifest intention of Mrs. W. that her property should go to all her children equally, and not to the heir at law. A mortgage is an interest, or estate, capable of being devised; and if sufficient words of description are used, the land or subject pledged, as well as the money se~ cured by it, vrill pass.[16] Though the legal estate may have been in the heir at law, yet the children, being in possession, and having a beneficial interest, they may protect themselves by the mortgage. It makes no difference whether the interest is that of a devisee, or cestui qui trust. It is said, the court will presume that the mortgage has been satisfied by the payment of the debt; but there is no such presumption, and no proof of payment has been shown or pretended. In regard to judgment debts, there can be no presumption of payment from lapse of time. The judgments are legal debts to this day. Again, the leases of Miller were subsequent to the mortgage, and are, therefore, in regard to the mortgage, void.[15] It is unnecessary, therefore, to discuss the doctrine of attornment, for the persons in possession became tenants to the snort
p. 373gagee, and to the defendants claiming under her. But, in truth, the attornments were legal and valid. Again, twenty-three years elapsed from the time Taylor took possession to the commencement of this suit. It is enough that he entered under colour of, or claiming title; for though it were a bad title, still the possession is adverse. He entered, not under Lord Stirling, but as owner; and on the faith of his having a good title, he' took the attornment of the tenants. It is said that the limitation will not run, because Mrs. Alexander, under the will of Lord Stirling, had a particular estate for life in the premises. But we contend, that under that will the wife of Lord Stirling took an estate in fee.[16] said the presumption against its being an unsatisfied mortgage, arising from the lapse of time, was strong; and the evidence to repel that presumption ought to be clear and satisfactory. The defendants cannot cover themselves with this mortgage. The heir at law is not a trustee to the children, but to the executors and administrators of the testatrix, who directs the whole of her estate to be sold and converted into money. This shows, most clearly, that she did not intend that her children should have any concern with the real estate, but merely to recover their shares of the proceeds in money. The general words of the will, will not pass an estate out of the possession of the devisor. The mortgage was intended to go as personal property to the executors, and to be collected by them among the debts.
T. A. Emmet, in reply,
delivered the opinion of the court. I do not think it necessary to examine into the correctness or legality of the proceedings to revive the judgment against-the heirs and tertenants of Lord Stirling; nor whether the premises passed by the sheriff’s deed under that judgment, because the counsel for the defendants, on the argument, disavowed to claim under it.
The question, then, is as to the validity of the title under the mortgage given by Lord Stirling to Anne Waddell.
The general description in this mortgage is liable to no objection ; a party conusant of his rights may sell or mortgage, by general description, though an officer must define what he sells,
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It was stated, on the argument, that the proof of the will of Anne Waddell was insufficient, and ought not to have been received as evidence of title; it was read on the trial as a link in the defendants’ title, without objection, which might otherwise have been obviated. It is now too late to make it. The will, therefore, for the purposes of this argument, must be considered as duly proved.
By this will, Anne Waddell directs her executors to collect, with all convenient speed, the one third part of the estate left her by her husband, and the interest money since accrued and due to her or to grow due, and all outstanding debts of every kind, and this, with all the rest of her estate in the Hardenbergk patent, and elsewhere, whatsoever and wheresoever, to be turned into money by them, and be equally distributed among her five children, share and share alike, who are to be tenants in common in fee of the severalty until such sale and distribution be made. The testatrix then gives 751. to each executor for his trouble, &c.
The words, as used, are not particularly appropriated to the conveyance of real estate, but are applicable to both personal ánd real; it is all her estate whatsoever. (6 Cruise, 231. s. 113. 1 Atk. 605. in note. 2 P. Wms. 198. 8 Term Rep, 118. 8 Ves.jun. 417. 5 Ves. jun. 339.)
The term estate evidently applies to all kinds of an estate; the debt and mortgage, consequently, passed by this devise; and as to her real estate, the fee was intended to be vested in all her children, as tenants in common, until distribution made betxveera them; so that it clearly appears never to have been the intention of the testatrix, that William Waddell should hold as trustee. If this is the true interpretation of the xvill, to xvliom ought the tenants to have attorned, but to the children of Anne Waddell, whose legal representative, John Taylor, xvas, as appears by the respective conveyances in evidence, at least sufficiently so, to give force and validity to the transaction. But admitting that the legal estate, created by the forfeiture of the mortgage, did not pass by the xvill, and that it descended to her eldest son, William, as heir at law, who in such case could hold it only as trustee for the executors, and, if no debts exist, (which, for aught that appears, is the fact in this instance,) for the other children. It then might well be questioned xvhether the possession has not been long enough to presume a deed from William, who has
p. 375
slept on his rights since 1791; and the case of England, ex dem. Syburn, v. Slade, (4 Term Rep. 682.) will support this doctrine; but without enforcing this principle, there can be no doubt that John Taylor entered as well under the mortgage, as under the judgments upon all or some of the debts due by Lord Stirling to Mrs. Waddell, also secured by the mortgage. If, then, an attornment, after the mortgage became forfeited, is authorized by statute to a mortgagee, it is equally valid in this case, as the possession by John Taylor must be deemed to have been taken for all the heirs, who cannot be treated by the mortgagor as strangers, and be turned out of a possession, obtained under a mortgage thus held for their benefit, forfeited before such possession was taken, and evidently unsatisfied.
That possession was taken several years subsequent to the forfeiture cannot be denied. It was, in fact, forfeited previous to the revolutionary war, long before the date of Ann Wad-dell’s will; and the possession was taken subsequent to her death. To show that this is an outstanding mortgage, it is only necessary to advert to the documents and evidence before us; - and although the proceedings to revive- the judgments may be deemed insufficient in law, to support the sale under them, by the sheriff of Ulster county, yet they are evidence to show . the conduct and understanding of the party, in relation to the debt, in order to rebut the presumption of payment, by lapse of time and acquiescence.
• That such presumption cannot exist, in this case, is evident. The judgment obtained in March, 1771, must prevent it. But it is said that this judgment is not for the same debt, and, therefore, disconnected with the mortgage. This cannot be the case; the contrary inference is irresistible. The circumstances in evidence will not admit of a doubt that the judgment is on two of the bonds recited in the mortgage, and that the debt is in fact the same. This alone ought, perhaps, to be deemed sufficient to repel the presumption of payment; but it also appears that proceedings were had in 1775 and in 1788, to revive this judgment, and that, in 1790, John Taylor took possession of the premises, and the tenants attorned to him ; so that instead of acquiescence until this period, the greatest attention and vigilance are evinced. But without noticing the proceedings to revive the judgments, the lapse of time from the 2d of December, 1771, the period when the mortgage became due, to the 7th oí April,
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1790, the time John Taylor took possession, is not long enough ^ presume payment, and deducting the period of the war, from the 14th of October, 1775, to the 21st of March, 1785, which ought to be done as being conformable to the rule adopted in the statute of limitations, it is wholly insufficient. Subsequent to 1790, Mr. Taylor, as the claimant under the representatives of Anne Waddell, supposed himself secure in the possession of the property, if not on the ground of title under the sheriff’s deeds, at all events under the mortgage, until it should be paid off, and he ought not now to be disturbed in it.'
It might, perhaps, be insisted that the entry on the premises by Mr. Taylor, while in possession of the sheriff’s deed, in 1790, was under colour of title; and that such entry was made by him as ownel- of the land, under a belief that the deed extinguished the equity of redemption ; and that the premises having been thus adversely held by him and his heirs for upwards of twenty years, the remedy in this action is lost. To determine the character of this possession, involves a question as to the extent of the devise to Lady Stirling, contained in the will of Lord Stirling, whether it gave an estate for life or fee simple. Although, in my view, there can bo little doubt as to the true construction of that devise, and, consequently, of the nature of the defendants’ possession, the inquiry, in this instance, is rendered unnecessary by the conclusive evidence that the mortgage, under which they held the premises in question, is outstanding, and, of course, sufficient to protect them in this action. Without, therefore, giving an opinion as to the right of the lessors to redeem, which cannot be made a question here, we are of opinion, that the defendants are entitled to judgment.
Judgment for the defendants.