Williamson v. Field.

The bill prayed for an account of the rents and profits of the lot, and after discharging all just allowances and what if anything was justly chargeable on the two mortgages, for payment of the balance. And for leave to redeem, if the rents proved to be insufficient; and for a surrender and conveyance of the lot to the complainants; and for general relief.

The infant defendants put in a general answer by their guardian ad litem. The executors of Mr. Field answered at large. They insisted on the validity of the mortgages and of the regularity of the foreclosure and sale. That Field had no notice of any of the frauds and irregularities and defects charged in the bill. That he was a purchaser in good faith without notice, for a valuable consideration fully paid. That he purchased under a decree of the Court of Chancery, and was compelled to take the title by a special order of the court adjudging it to be a valid title. And that his possession and that of his executors had been adverse to the complainants from its commencement. All these matters were insisted upon as a bar to the suit. The executors also insisted upon the lapse of time as a bar, and also set up the ten years limitation of suits in equity, contained in the revised statutes. Also that there could be no partial redemption, and that all the complainants except Bayard Clarke, were barred by lapse of time and the statute. They denied their liability to account at all for the rents and profits, and insisted that in no event ought they to account for more than six years preceding the commencement of the suit.

The cause was heard on the pleadings, proofs and documentary evidence.

David Dudley Field, for the complainants.

John Jay and George Wood, for the defendants.

Mr. Field, made the following points.

I. The complainants are entitled to come into this court for relief, either as persons interested in the subject of the orders heretofore made in this court, or as the owners of the equity of redemption of the mortgaged premises. (1 Hoff. Ch. Pr. 420; 6

Williamson v. Field.

Madd. 28; Mitford's Pl. 93, 92 and notes; 1 Barb. Ch. Pr. 334; 2 ibid. 211.)

II. The mortgages to Mapes and Oakley and to Kennedy were invalid for the following reasons:

1. The acts of the legislature under which they were given were unconstitutional. (Jones v. Perry, 10 Yerger, 59; Taylor v. Porter, 4 Hill, 140.)

2. The orders of the Court of Chancery were not in conformity to the acts. (Cochran v. Van Surlay, 15 Wend. 442, 444 to 446; S. C. 20 Wend. 373, 374, 378; 3 Atk. 712; 2 J. C. R. 246, 400; Bloom v. Burdick, 1 Hill, 130; Waldron v. Macomb, ibid. 111.)

3. The mortgages were not in pursuance of the orders. (Cochran v. Van Surlay, 20 Wend. 387, per Verplanck, Senator.)

III. If the mortgages were not actually null and void, they were so far an abuse of the authority of the court and subversive of the complainants rights, that this court will now review the whole transaction, and will restore the property to the complainants on payment to the defendants of what their ancestor paid with interest. (Verplanck, Senator, in 20 Wend. 386; Gifford v. Hart, 1 Sch. & Lef. 386; Cruise's Digest, tit. 33, § 49 and 53.)

IV. If the mortgage was valid, the complainants not being parties to the foreclosure, are not foreclosed, and may now redeem, in the common course. (Story's Eq. Pl. 176, 182, 187; Calvert on Parties, 181; Calverley v. Phelp, 6 Madd. 229; Wilton v. Jones, 2 Y. & Coll. New Cases, 224; Helm v. Hardy, 2 B. Monroe's R. 232; Eagle Ins. Co. v. Campbell, 2 Edw. 127; Kortright v. Smith, 3 Edw. 402; Rogers v. Rogers, 3 Paige, 379; Nodine v. Greenfield, 7 ibid. 544.)

V. The complainants have not lost their rights by time.

1. They are in time at any period within twenty years after Field got possession, which was in 1827.

2. The revised statutes do not apply to this case, their rights having accrued previously.

3. If the revised statutes did apply, twenty years would still be the limitation because the remedies are concurrent at law and in equity.

Williamson v. Field.

4. If the remedies were not concurrent, and the limitation were ten years, the bill was in time, because the youngest child became of age in 1836, and the statute did not begin to run till all came of age.

5. Even if it were otherwise, and the statute began to run against each as he became of age, the youngest is in time, and may redeem the whole property.

(Under the fifth general point, the counsel referred to 2 R. S. 301, 302, § 52; Blansh. on Lim. 65 to 67; Moore v. Cable, 1 J. C. R. 385; Blake v. Foster, 2 Ball & B. 387; Burke v. Lynch, 2 ibid. 426; Dash v. Van Kleeck, 7 Johns. R. 493; Sackett v. Andross, 5 Hill, 334, per Bronson, J.; Van Hook v. Whitlock, 3 Paige, 409; Henry v. Stone, 3 Beavan, 355; Calv. on Parties, 11, and note 3; Morse v. Hovey, 9 Paige, 167; Brinckerhoff v. Lansing, 4 J. C. R. 65; Western Ins. Co. v. Eagle Fire Co. 1 Paige, 284; Mitf. Pl. 179, 180; Davies v. Quarterman, 4 Y. & Coll. 257.)

Mr. Jay, for the defendants, made the following points:

I. The decree in the suit on the mortgage was binding upon the children of Clarke, and barred their rights in the equity of redemption, they being foreclosed thereby.

1. Clarke held the entire legal and equitable estate in fee in himself for his own benefit, in respect to his estate for life and his contingent remainder in fee, and for the benefit of the children to the extent of their contingent possibility in fee.

2. The children had no estate either legal or equitable, vested or contingent, but only a possibility, the whole legal and equitable estate being in Clarke the assignee of the trustees.

3. Clarke as the father and natural guardian, and as special guardian under the statute under the special supervision of the Chancellor, had such a management and direction of the rights of the children as sufficiently to represent them in equity, where parties may be dispensed with if convenient or unnecessary to produce them, and especially in a suit where the special rights and equities of the trustee and minors are not brought in ques

tion.

II. The acts of the legislature in question were constitutional VOL. II.

69

Williamson v. Field.

and valid, being designed to apply the contingent rights of the infants to their maintenance and support. (Cochran v. Van Surlay, 20 Wend. 365.)

III. The orders in chancery under which the mortgages were given, were in substantial conformity with the acts. (20 Wend. 375, 378, per Chancellor.)

IV. There being no collusion proved between Field, the purchaser, and the parties to the foreclosure suit, the court will not inquire collaterally into the merits of that suit, or of the mortga ges on which it was founded. (20 Wend. 385, per Verplanck, Senator; 2 Story's Eq. Jurisp. 1124, 1125; Mitf. Pl. 163; Calv. on Part. 19, 20; Drew v. Hardy, 5 Price, 319; 4 Kent Comm. 186; Story Eq. Pl. 88; Dayell v. Champness, 1 Eq. Ca. Abr. 400, pl. 4; 3 Madd. 245; 1 Barb. Ch. Pr. 85; 2 Paige, 304, 305; 20 Wend. 387; 2 Story's Eq. Jur. § 1718; Doe v. Provost, 4 Johns. R. 65; Dougl. R. 776; 1 Cruise's Dig. 503, tit. 12, ch. 2, 31; Stanley v. James, 16 Wend. 238, 239; 1 Preston on Abstr. 75, 76, 77.)

V. If there had been any misapplication of the funds raised by the mortgages, or of such parts of them as sprung out of the contingent rights of the infants and were applicable to their maintenance, the purchaser under the decree is protected against it, and this court, in the absence of fraud and collusion on the part of the purchaser, will not look behind the decree.

VI. If the court could look behind the decree as between other parties, it will not as against Field and those claiming under him, as a purchaser for a valuable consideration without notice.

VII. Two of the children are barred by the statute of limitation prescribed in the revised statutes which is prospective and applies to their case.

VIII. In respect to the other child, the statute runs, except as to his part as tenant in common.

Mr. Wood, referred to the following authorities:

As to the power of the court under the acts of the legislature, (20 Wend. 374, 378.) That the children of T. B. Clarke had only a possibility, during his life, and not a vested interest or right; 1 Preston on Estates, 76; Lampet's Case, (10 Coke,

Williamson v. Field.

46;) Pelletreau v. Jackson, (11 Wend. 120; and 2 Maule & S. 165, there cited ;) Moore v. Lyons, (25 Wend. 119.) On the question of parties in the foreclosure suit, Nodine v. Greenfield, (7 Paige, 548;) Yeates v. Hamblin, (2 Atk. 237, 238;) Story's Eq. Pl. § 108, 110, 170, 227; 2 Story's Eq. Jur. § 1067; Wellbeloved v. Jones, (1 Sim. & St. 43;) and the decree and order to complete the sale in the foreclosure suit. On the lapse of time and the statute of limitations, 2 R. S. 301, 302, 52; Ogden v. Astor, (MS. case before V. C. McCoun;) and as to cumulative disabilities, Bradstreet v. Clark, (12 Wend. 676;) Jackson v. Johnson, (5 Cowen, 74;) Demarest v. Wynkoop, (3 J. C. R. 136.)

Mr. Field, in reply, referred to Watson v. Spence, (20 Wend. 260;) Cruise's Digest, title 16, chap. 1, § 35, 36, 41, and Fearne, there cited; Jackson v. Waldron, (13 Wend. 178, 195;) Moore v. Lyons, (25 ibid. 119;) Doe v. Noel, (1 Maule & S. 327 ;) Story's Eq. Pl. 193, 197, 207, 209; Lewin on Trusts, 610; 2 2 Story's Eq. Jur. § 1254 to 1266, 1124 to 1135; Haynes v. Beach, (3 J. C. R. 459.)

THE ASSISTANT VICE-CHANCELLOR.-There is no doubt but that the decree of this court upon the foreclosure of the mortgage of Mapes and Oakley, is final and conclusive upon the complainants, not only as to the validity of that mortgage, but as to their right to redeem the lands in question, if they were properly represented in the foreclosure suit.

They were all in being before that mortgage was executed, but neither of them was made a party defendant in the suit; and Clement the eldest child of Thomas B. Clarke, who survived till after the sale under the mortgage, was also omitted in the proceedings for its foreclosure.

It is contended by the defendants, that it was unnecessary to make the children of Thomas B. Clarke who were then in esse, parties to the suit upon Mapes and Oakley's mortgage, for two reasons. First, because at that time the children had no estate or interest in the lands, either legal or equitable, vested or contingent. They had a mere possibility, to the effect that if they