Lockwood v. Lockwood 1 Day 295

Lockwood v. Lockwood.

1804.

In the Court below,

Gideon Lockwood, and John Lockwood, Petitioners ; Albert Lockwood, Respondent,

A- devises a -mortgaged es-tat.- u>b. †⅛ Jr undDt m-ú d i?ce> <iuryg' tne me of B-will pvdwie p gK r ⅛ *

THE petition stated, that John Lockwood, on the 4th r V • of May, 1764-, mortgaged to Nathaniel Marston, for the sum of Í00/. New-York currency, payable in one year, 20 acres of land ; and on the ISth of February, 1784, said John, by his will, devised to his wife the use and improvement of all his estate, real and personal, for her life, with power to sell, if she should have need of more r - " than the use, remainder to his children, of whom the petitioners were two. The wife of the testator died on the 15th of January, 1801, not having disposed of said right , of redemption. No distribution of the estate of said John was ever made among his devisees and legatees. In the year 1786, Thaddeus Rennet levied an execution upon the interest in the equity of redemption of Michael Lockwood, one of the devisees, and conveyed the same to the petitioners. Mantón died in October, 1778, and devised the mortgaged land to his executor, who, on the 12th of December, 1798, eonveved the same to Albert Lockwood, the respondent. The prayer of the petition was, that the respondent should account, and that ¡he petitioner might redeem». Petition dated the 9th of July, 1802.

The respondent, In his answer, admitted tire mortgage to Marston, the will of John Lockwood., and the conveyance to himself, and denied the levy of Btnnei’s execution. He also stated, that Marston recovered judg-xpent, in an action of disseizin, in November, 1767, *296against JohnLockwáod, and that this estate had not been inventoried as John Lockwood’s, though a final settlement had been made of his estate ; that on the 16th ol June, 1785, the respondent went into possession of the premises, under a lease from Marstón, and continued in possession as aforesaid, till December, 1788, and then purchased the same, and had ever since been in possession. He also averred, that the mortgage money had not been paid. The Court found the facts above selected from the answer to be true, and sufficient, and the facts in the petition, not traversed in the answer, to be true, and decreed, that the petitioners take nothing by their petition.

Edwards, (of New-Haven) and R. M. Sherman, for the plaintiffs in error.

Though Albert Lockwood has been in possession c this land more than fifteen years, yet the rule adopted, in analogy to the statute of limitations, does not apply to this case. Here, the wife had the use of this estate during her life, with power to sell it. Albert, therefore, cannot have gained a title by possession, against the petitioners ; as they could not claim by a legal right, or have a legal process to enforce their claim.

The petitioners had only a contingent remainder, or an executory devise. The statute, to which this rule is analogous, is intended to operate only in those cases, where the party can make his entry, or “ sue out to effect his right or title.” (a)

Even were the remainder vested, the tenant in *297maindtr would not lie ham d. But here, the petitioners had no interest, during the lite of the widow ; — it was a mere possibility, not devisable, nor transferable, and not such an interest, as it has often been determined, as would give a person a right to redeem.

If we admit this to be a contingent remainder^ still, -as itis not a vested interest, we have been guilty of no latches. It is like the case of an estate given to one, after he arrives to 21 years of age. Were this a vested remainder the devisees might redeem, but would not be obliged to redeem, during the life of the tenant for life ; for by redeeming, they could not obtain the present enjoyment of the property, and the tenant for life could redeem out of their hands.

It has been suggested, that the remainder must vest . somewhere, and that the estate, which was not in the widow, must be in the heirs of John Lockwood. But, if an interest did vest by descent, in the heirs of John Lockwood, this would not prevent them from redeeming, except so far as they received property by descent.

If the widow is disseized of the estate set out to her as dower, for fifteen years, the heirs will not be barred, by her neglecting to recover her dower. Suppose - she had been endowed of this mortgaged estate, as by the decisions of the Superior Court she might have been, had there been no will, and the mortgagee had ejected her, after which she had lived fifteen years, would this have pie vented the heirs from redeeming ? Surely, the devisees are not to be placed in a worse situation than the heirs. -

*298Ingersoll, and Daggett, for the defendant in error.

This Court,- in the case of Smith w Skinner, (b) decided, that a rule similar to the statute of limitations was to be adopted in chancery. The Superior Court had adopted the same principle, (c) Where more than fifteen years have elapsed, and there has been no acknowledgment of the mortgagee, nor any act of his evincing the estate to be a mortgage, and the mortgagor cannot show himself to be within the exceptions allowed by the courts of chancery in Grcat-Britain, no redemption can be had. In'1764, this land was mortgaged; nothing more is heard of it till 1784, when it is claimed to have Bien devised. In 1785, the respondent went into possession under a lease from Marstóñ ; in 1787, he purchased it of Marston, and received a conveyance, claiming if ⅛ his 0¶⅝⅛ It is not pretended, that he claimed ás heir to John Lockwood,, He stands, then, On the same ground, that' Matétón himself would have stood on; and the petitioners, not having been minors, or femes covert, or beyond seas, could not have redeemed against Matstoh. The statute of limitations having begun to rim, always continued to run.

: But it is said, that it was so devised by John Lock* wood, that they could not get into possession. W ere this so, it could not vary the rights of Marston, or his assignees. But was there no person who had a right to redeem ? This is not pretended. The widow might have redeemed, and our claim is not to be varied by tef neglect. •

*299But die petitioners themselves had power to redeem, ¿uriñe this time. Their interest ivas not a bare possibility, or even a contingent remainder, but a fee vested in them, liable, however, tobe defeated, for die support of the widow.