
    Christian L. Benzein et al. v. Jesse Robenett et al.
    From Wilkes.
    On the hearing of an original bill, in the nature of a supplemental bill and bill of revivor, depositions taken in the original suit may be read.
    In Equity, upon a bill by the mortgagor to redeem, he shall have relief!, though at law, the estate of the mortgagee is barred; as upon a disseisin, and seven years possession with colour of title*.
    This cause was a branch of that of the same Plaintiffs against William .Lenoir (reported ante p. 225). It sef forth the same title and the same facts. The two infant children of Montgomery, who pending the former suit had married, were, with their husbands, Montfort Stokes and James Wellborn, made Plaintiffs. The Defendants claimed under Mary Gordon, who was a Defen~ dant to the original suit, as to whom it had abated. The present bill prayed a revivor, as to those claiming under Mary Gordon, and in other respects, the same relief as that sought by the original bill.
    The only additional fact appearing on the pleadings in this case was, that upon payment of the mortgage debt due the TJnitas Fratrum, the residue of the term created by the deed of Hugh Montgomery, of July 23, A. D. 1778, to John Michael Graff, had been assigned to John Brown, the younger, the executor of John Brown the elder, the surviving trustee and executor of Montgomery.
    
    At June term, 1829, the case was argued by Buffinf then at the bar, and Badger, for the Defendants, upon a motion to suppress the depositions taken in the original case, which were filed in this, and by Seawell & Gas-ion for the Plaintiffs. And at this term, it was, on the hearing, argued by the same gentlemen, with the exception of hi3 Honor Judge Rustin'.
   Hall, Judge.

The binds in question were part of a tract originally granted to Henry Cossart, from whom they descended to Christian Frederic Cossart, hi» son and heir at law. Me, in the year 1772, made a power of ai-tommy ro Frederick W. Marshall, either to sell the lauda himself, or to appoint souse other person altóme/ in fart for dial purpose. The said Frederick IF. Marshall did not sell or dispose of the land:;, but iiominstífid and appointed John Michael draff, attorney in fact of the said Cossart, in! he year 1774, with general ¡Movers, as ho was author^: ,! to do. The said Gruff, its ihe year 1778, sold tin* said lands, as the agent of tin* said-fi'ossrtrí, to Hugh Montgomery, for the sum of »2,500. In the same year, Hugh Montgomery mortgaged the- same lands, foi the tena of five hundred years',, to the said Graff, to secure the debt to him, a;; agent of the Unitas Feat nun j he died, and Fragotf. Baggc became his adminístralo!,' and in the year 1734, assigned the said tena to F, IF. Marshall, agent of the Unitas Fratrum. He devised th-lands to Christian L. Beuxeia; lie died, and the mortgage. term came to the Plaintiff», his executors.

It further appears, that Hugh Montgomery conveyed the land in question, after ihe date of the mortgage, to John Brown and otilara, trustees for Ose benefit of his two female infant children, since married to Monlfort Stokes and James Wellborn, who are also Plaintiffs.

The Deihndanls claim under grants, issued by the State for the same lands, but bearing date posterior to the deed executed to Montgomery, and posterior to the deed of mortgage given by him, before noticed.

It appears, that Mary Gordon was sued for these binds in the original suit, spoken of in the bill, but that (he -mil, as to her, abated by her death j and was not revived, as to those, who claim under her. The present hill is brought against such persons $ and considering it to be an original bill, in the nature of a supplemental bill,. and bill of revivor, I think it is not improper to read the depositions >aken in the original suit; though, In the view I lake of the case, I shall make no use of

The Defendants allege, that the Plaintiffs have no grounds for coming into a Court of Equity ; that if they have a-y right to the lands in question.- they should assert it at Law. In the former suit, I attempted to give the reason, why a suit had not been brought at Law (Ante p. 263). But it may be, assumed, that the mortgagee might have brought a suit at Law, and has failed to do so ; and that the legal title being in him, he is the only person who could bring such suit; and that not having brought such suit, he is barred by the statute of limitations. It does not follow of course, that the rights of the mortgagor are concluded by the same bar. He has twenty years to redeem, or as long as the mortgage is recognized by those concerned. (5 Bac. Abr. 94).

1 have no inclination, either to repeat or unsay, what appeared to me, in the former suit, to be the correct principle of decision. 1 will only ádd to it a few remarks.

It is argued for the Defendants, that they have had a seven years actual adverse possession, under a colour of title — a grant from the State. That may be true, and still their title is not good. It is not true, as a universal proposition, that such a possession gives a title. It only giv»s title, in the words of the act, against such persons, whose rights or titles shall descend or accrue. Thus, if an estate is made upon condition, that the feoffor shall re enter, provided be pays or tenders a certain sum of money, on a certain day, twenty or thirty years after-wards. If the money shall be paid or tendered on the day, he may enter, and regain his estate. In this case, the feoffee might be in possession twenty or thirty years, bu* it would not give him a fee-simple. So if there is a tenant for life, remainder in fee, and tenant for life makes a feoffment in fee, the remainder man may presently enter f-r the forfeiture. But if he does not enter for seven, or t\v* nty years, provided the tenant for life 1¡ ves so ionu;, Ire may afterwards, upon the death of the- tenant for lif-, enter by virtue of his remainder, whirl) has fallen into possession. (5 Bac. Abr. 830). Yet the iVoffce of tenant for life, although peaceably possessed during the'life of tenant for life, acquires no fee-simple, bee une tíre right of the remainder man had not accrued during that time.

Again, and which is more in point, if a man disseises a mortgagee, and levies a fine, and live vearo pass after the proclamations by which the mortgagee is bound, yes. if tire mortgagor pay, or tender the money due on the mortgage, he has five years to prosecute his right, by the second saving of the, statute of 4 Hen. 7, c. 24: because his title did not accrue till payment or tender of the money, by condition made upon cause, or matter before the proclamations, viz. by the condition made before the, fine. (Plow. 373). In this case, we see a person holding an estate in the post, altogether unconnected in privity with the mortgagee, nay, holding an estate under a fine levied by the disseisor of die mortgagee, obliged to yield his title to the mortgagor, when the time comes, be it long or short, vvhen the money becomes due, according to the condition in the mortgage. It is true, if the money wag not paid at the day, according to the condition, the estate became absolute at law. (Co. Lit. 221, 222). But Courts of Equity consider the mortgagor to be the owner of the land, which is only a pledge for the money lent, and will sustain the right of redemption in the mortgagor, against the same persons from whom the estate might have been wrested at law, in case the money had been strictly and legally paid or tendered, according to the condition. (Hard. 465. Co. Lit. 35, note z). It would seem to make but little difference with the possessor of the land, claiming against the mortgagee, if lie must he disturbed, whether it is by the mortgagee, or by the mortgagor. There jg ibis difference! the mortgagee can only sue atLaw.aud t¡iat within seven years. The mortgagor, generally speaking, has twenty years, or in some cases longer, if |)le mortgage shall be recognized as such by the parties. (Thom. Co. Lit, 41, note z). In the present, case, the existence of themortgage is acknowledged by the parties, and must be admitted by all.

But it is stated in the bill, that the remainder of the mortgage term has been surrendered to John Brown ttie younger in consequence of the money being paid, which was due on it; and it is insisted for the Defendant, that John Brown has a remedy at Law. It may be answered, that if there is an end of the mortgage, it is of very recent date before, the filing of the present bill; that John Brown has not thought, proper to sue ,and that the Plaintiffs have no remedy at Law; that although the mortgage Is now extinct, it stood in the way until very lately, and prevented a suit at Law ; that the legal right to the land is now in John Brown the younger, and that a heneficial trust was created in the Plaintiffs, under the deed of Hugh Montgomery, made to John Brown the elder and others, trustees &c. and and also under the will of said Montgomery; that since the mortgage term has become extinct, no time has elapsed, that will impair the equitable rights of the Plaintiffs, or interpose an obstacle to redress for it in this Court, against those trustees, and also against the other Defendants. I therefore think the female Plaintiffs are entitled to a decree, to be based upon the deed from Montgomery to John Brown and others, trustees, and also upon Montgomery’s will.

Per Curiam.

— Decree accordingly.  