as the fit and proper ground for taking the length of possession therein mentioned as the presumption of right; and the courts of equity have been considered by the judges, in some cases, as virtually, though not in terms, included in its provisions. This is the general doctrine, in England, and in this country, in respect to remedies in equity; but the late Revised Statutes of New-York have wisely removed all doubt and difficulty on this subject, and regulated limitations in equity by express provisions. In all cases of concurrent jurisdiction, in the courts of law and of equity, the statute of limitations applies equally to both courts; but it does not apply to cases in which a court of equity has peculiar and exclusive jurisdiction; and in all such cases, the limitation of bills for relief, on the ground of fraud, is six years after the discovery of it by the aggrieved party; and in all the other cases not provided for,

the limitation is ten years after the cause ac*188 crued; and *this, consequently, reduces the right to redeem for twenty years, as it before stood, to ten years.^

Rep. 129. Kane v. Bloodgood, 7 ibid. 90. Slee v. Manhattan Company, 1 Paige, 48. Lamar v. Jones, 3 Harr. & M'Henry, 328. Sir Thomas Plumer, in Chalmer v. Bradley. 1 Jac. & Walk. 83. Lyttle v. Rowton, 1 Marshall, 519. Elmendorf v. Taylor, 10 Wheat. Rep. 168. Lord Redesdale, in Cholmondelly v. Clinton, 2 Jac. & Walk. 191. Dexter v. Arnold, 3 Sumner's Rep. 152.

• New-York Revised Statutes, vol. ii. 301, sec. 49, 50, 51, 52. The period of limitation of a right of entry upon land varies very materially in the different states. It is 30 years in Mississippi; 21 years in Pennsylvania and Ohio; 20 years in Maine, New-Hampshire, Massachusetts, Rhode Island, New-York, New-Jersey, Delaware, Maryland, Virginia, Alabama, Kentucky, Indiana, and Missouri; 15 years in Vermont and Connecticut; 10 years in Louisiana ; 7 years in North Carolina, Tennessee, and Georgia; and 5 years in South Carolina. But in North Carolina the limitation in certain cases is 21 years, by the act of 1791, to constitute a bar to the right of entry. See, the appendix to Mr. Angell's learned and accurate Treatise on the Limitation of Actions at Law, and Suits in Equity. After entry by the mortgagee, upon default, or by writ of entry, the limitation of the right of

It is the better and prevailing opinion in the English courts, that if a mortgagee enters in the lifetime of the tenant for life, the remainder-man will be barred of his right to redeem, after twenty years from such entry. The principle is, that the remainder-man might have redeemed, notwithstanding the life estate, and that it is of no consequence to the mortgagee who has the equity, for he ought to be quieted after twenty years' possession. This was the opinion of Ch. B. Eyre," and of Sir William Grant, and it was so decided in Harrison v. Hollins. Lord Manners was of a different opinion, and he concluded, from analogy to the statute of limitations at law, that the remainder-man had twenty years to redeem, after the termination of the life estate. Until his title vests in possession, he was quite unconnected with the tenant for life; and there was as much reason in this as in other cases, that lapse of time should not bar, until his right of entry had accrued. As the right of redemption belongs exclusively to a court of equity, the remainder-man's bill to redeem must, in New-York, be filed within ten years "after the cause thereof

*shall accrue ;" and whether the cause for re- *189 demption, as respects the remainder-man, may be said to accrue when the mortgagee enters, and takes possession, under the mortgage, remains yet to be settled. This case does not fall precisely within the principle which gives to a remainder-man twenty years after the death of the tenant for life to assert a title, and make his claim and entry by action; for until then he had no right of entry; whereas, the remainder-man,

redemption, in the New-England states, is not regulated by the general limitation to a right of entry, but is, as we have already seen, very much

reduced.

Corbett v. Baker, 1 Anst. 138.

1 Sim. & Stu. 471.

⚫ Blake v. Foster, 2 Ball & Bea. 387. 575.

New-York Revised Statutes, vol. ii. 301, sec. 52.

in the other case, may redeem the mortgage in the lifetime of the tenant for life; and to permit a mortgagee to be called to a severe account for the proceeds of the estate, after a long unmolested reception of the rents and profits, and when he is not allowed any adequate compensation for his care and trouble, is not, in those instances, where the remainder-man might have called on him sooner, very consistent with true policy and substantial justice.a

The mortgagee may equally, on his part, be barred by lapse of time; and if the mortgagor has been permitted to possess and enjoy the estate without account, and without any payment of principal or interest, or claim for a given period, and which is generally fixed at twenty years, the mortgage debt is presumed to be extinguished, and a reconveyance of the legal estate from the mortgagee may be presumed. The period of twenty years is taken, by analogy to the period of limitation at law, for tolling the entry of the true owner. The rule of barring the equity of redemption, or the claim of the mortgagee, by lapse of time, is founded on a presumption of title, which may be rebutted by *190 parol proof, or circumstances sufficient to put down or destroy the contrary presumption.

a

According to the principle of the decision in Wells v. Prince, 9 Mass. Rep. 508, though a remainder-man should have acquired a right of entry in the lifetime of a devisee for life, yet he was not bound to avail himself of it, and might enter after his second right accrued by the death of the tenant for life.

b Hillary v. Waller, 12 Ves. 239. Cook v. Soltan, 2 Sim. & Stu. 154. Moore v. Cable, 11 Johns. Ch. Rep. 385. Giles v. Baremore, 5 ibid. 545. Jackson v. Wood, 12 Johns. Rep. 242. Ross v. Norvell, 1 Wash. 14. Howland v. Shurtleff, 2 Metcalfe's Rep. 26. By the statute of 3 and 4 Wm. 4, c. 27, explained by statute 1 Vict. c. 28, mortgagees must bring their suit to recover the land mortgaged within twenty years next after the last payment of any part of the principal money, or interest secured by the mortgage. • Whiting v. White, Cooper's Eq. Rep. 1. Reeks v. Postlethwaite, ibid. 161. Barron v. Martin, ibid. 189. Hughes v. Edwards, 9 Wheat. Rep. 489..

When a forclosure takes place by a sale of the mortgaged premises under a power, it is usual, in England, to provide in the mortgage itself for due notice of the sale, so as to afford a fair opportunity of an advantageous sale. If the mortgagee omits to give proper notice, whether directed by the power or not, the sale may be impeached in chancery.a In New-York, and probably in other states, a sale under a power is made the subject of a statute provision; but as the title under such a sale does not affect any mortgagee or judgment creditor whose lien accrued prior to the sale, it *191

The English rule as to the allowance of parol proof to destroy the effect of the mortgagee's possession for twenty years, was proposed in England to be abolished, by the proposition of the real property commissioners, that the mortgagee's right, founded on twenty years' possession, should not be taken away by any unwritten promise, statement, or acknowledgment.

a

Anon., 6 Madd. Ch. Rep. 15. The notice of sale under the foreclosure of mortgages is the subject of special regulation by the New-York statute of May 7, 1844, ch. 346.

It is requisite, in New-York, to a valid execution of the power, that it be previously registered, or the mortgage containing it recorded; and that there be no pending suit at law, nor any judgment for the debt on which an execution has not been returned unsatisfied; and that notice sufficiently descriptive of the mortgage, and the debt, and the land, be published for twentyfour weeks, successively, once a week, in a newspaper printed in the county where the lands, or a part of the lands, are situated, and the same also affixed twenty-four weeks prior to the time of the sale, on the outward door of the nearest court-house of the county. Every such sale must be in the county where the mortgaged premises, or some part of them, are situated, and at public auction, and distinct farms, tracts, or lots, are sold separately. The statute further provides, that the mortgagee, and his representatives, may purchase; and every such sale is declared to be equivalent to a foreclosure and sale in equity, so far as to bar the equity of redemption of the mortgagor, and of all persons claiming under him by title subsequent to the mortgage; but it is not to affect a mortgagee, or judgment creditor, whose title or lien accrued prior to the sale. The affidavit of the publication and notice of sale, and circumstances of the sale, are evidence of the sale and foreclosure without any conveyance. The statute contains some further directions necessary to be attended to, concerning the contents and disposition of the affidavit of the sale. New-York Revised Statutes, vol. ii. 545, tit. 15, and Acts of New-York, April 18th, 1838, and of May 7th, 1844, ch.

must be rather a hazardous and unsatisfactory title, and far inferior to one under a decree in chancery, founded on a view of the rights (and which bars the rights) of all encumbrancers who are brought before the court. The sale under a power, if regularly and fairly made, according to the directions of the statute, is a final and conclusive bar to the equity of redemption. This has been the policy and language of the law of NewYork, from the time of the first introduction of the statute regulations on the subject, in March, 1774. As proceedings under a power are in pais, and no day in court is given to the mortgagor to set up any equitable defence, a court of equity will interfere, where payments have been made, and not credited, and stay the proceedings, and regulate the sale as to the extension of notice, or otherwise, as justice may require, and particularly when the rights of the infant heirs of the mortgagor are concerned. A sale under a power, as well as under a decree, will bind the infant heirs; for the infant has no day after he comes of age to show cause, as he has where there is the strict technical forclosure, and as he generally has in the case of decrees."

(5.) Of opening biddings.

Upon a decree for a sale, it is usual to insert a direc

Doolittle v. Lewis, 7 Johns. Ch. Rep. 50. It was formerly held, that though the mortgagee omitted to record the power, yet that the sale would be binding upon the mortgagor, and bar his equity of redemption. Wilson v. Troup, 2 Cowen's Rep. 229. 242. But the new revised statute would seem to be too precise in its injunctions, to admit of such a latitudinary construction. It declares, that to entitle the party to give notice, and to make the foreclosure, it shall be requisite that the power has been duly registered, and that every sale pursuant to a power as aforesaid, and conducted as therein prescribed, shall be a bar, &c.

115.

Van Bergen v. Demarest, 1 Johns. Ch. Rep. 37. Nichols v. Wilson, ibid.

Booth v. Rich, 1 Vern. 295. Mallack v. Galton, 3 P. Wms. 352. Mills v. Dennis, 3 Johns. Ch. Rep. 367.