
    Roxanna Alden, Individual and as Executrix, etc., Pl'ff v. Charles E. Barnard, as Executor, etc., et al., Def'ts.
    (Supreme Court, Oneida Special Term,
    Filed January, 1896.)
    Limitation—Running op statute.
    Where a husband obtains money from his wife on his agreement to use it in procuring an assignment to her of an overdue mortgage on his residence, and he, instead procures, without her knowledge, a satisfaction thereof and puts it on record, and when, a short time thereafter, upon her discovering the misappropriation, they make an ag-reement that the mortg-age should stand as a valid security for the amount of the funds misappropriated, and that she should have the same interest in the land as if she held the assignment thereof and that, as long as they should live together as husband and wife on the premises, he should be released from payment of interest, the statute of limitations was held, in an action by her against his executors and others to have such satisfaction piece cancelled and to be adjudged owner of said mortgage, not to begin to run against her until the date of her husband’s death.
    J. A. Pease and S. M. Lindsley, for pl’ff; Charles G. Irish and Thos. S. Jones, for def'ts Charles E. Barnard, Minnie E. Hughes, and Nellie C. Barnard.
   WRIGHT, J.

In 1883, Mr. Alden, a few weeks prior to his marriage with the plaintiff, obtained from her $700, upon the agreement that he would use the money in procuring an assignment to her of a mortgage then outstanding against his residence in Utica, and overdue. A few weeks after their marriage, he obtained another sum, of $800, upon the agreement that he would use it in procuring the assignment to her of another mortgage outstanding against his residence, and overdue. Instead of procuring assignments, he procured, without her knowledge, satisfactions of the mortgages, and put them on record. A short time thereafter, upon her discovering the misappropriation of the funds, they made an agreement that the mortgages should stand as valid securities in her hands for the amount of the funds misappropriated, and that she should have the same interest in the land as if she held assignments thereof, and that, as long as they should live together as husband and wife on the premises, he should be released from the payment of interest. He had no other property, and they lived together in the enjoyment of the possession of the property until his death, which occurred in December, 1890. The defendants who have answered are the executor of the will of Mr. Alden and his children by a former marriage. They interpose the statute of limitations as a defense.

As between the plaintiff and her husband, these mortgages were never paid nor satisfied. Equity does not give his wrongful deflection of the fund the force of payment, but considere what ought to be done as done. By the use of her money as described, under the agreement to obtain assignments, she became at once the equitable owner of those mortgages, with the right to enforce them. Johnson v. Parmely, 14 Hun, 398; Short v. Currier, 153 Mass. 182; Purser v. Anderson, 4 Edw. Ch. l8. If there were no subsequent agreement, the statute of limitations would begin to run from that date. But the subsequent agreement above detailed, by "which he conceded all of her rights, rendered litigation unnecessary. Her possssion and right of possession under the agreement had a characteristic additional to that of a wife in the enjoyment of her husband’s real estate; and it was so recognized by her husband on a subsequent occasion, when she complained of having been excluded by his children from the enjoyment of certain rooms, contrary to the agreement above mentioned, and proposed to leave the house unless he should rectify the matter, which was accordingly done. And since, under that agreement, nothing became due on the mortgages while they were in mutual possession and enjoyment of the premises, the statute of limitations did not begin to run against the plaintiff until the date of Mr. .Alden’s death. The statute never runs against a contractor while he is in the full enjoyment of his rights under the contract. While the plaintiff was in possession of the premises with her husband, she, under the agreement, was in the enjoyment of all the rights she had, or could have, as owner of those mortgages, according to their terms of payment, as modified by the agreement. The executor and heirs occupy Mr. Alden’s position. The complaint may stand as amended to conform to the The is entitled to

Judgment for plaintiff.  