
    PHILIP P. PENDLETON AND HENRY B. TYLER, EXECUTORS AND TRUSTEES UNDER THE LAST WILL, &C., OF EDWARD H. PENDLETON, DECEASED, ELIZABETH PENDLETON, HELEN M. PENDLETON, GERTRUDE S. WILLIAMS AND HER HUSBAND, GEORGE M. WILLIAMS, vs. GEORGE PARKER, TRUSTEE, SURVIVOR OF JOHN W. MAURY, SAMUEL T. WILLIAMS, WRIGHT RIVES, AND FRANKLIN RIVES, EXECUTORS, &C., UNDER THE LAST WILL, &C., OF JOHN C. RIVES, DECEASED.
    In Equity. —
    No. 3629.
    I. The land upon which three trust-deeds had been executed was sold by the trustee in the youngest deed for less than the amount of the old incumbrances, under an agreement by all the parties that the deed to the purchaser should be clear of all the deeds. The money was divided pro rata on each of the claims, the first incumbrancer receiving part of his in the note of the purchaser, which was paid at maturity. The first incumbrancer died without having released his trust-deed, and leaving one of the notes secured thereby among his papers. It was Held that, having consented to share in the proceeds of the sale during his life, the heirs of the first incumbrancer ought not to assert a claim under his deed of trust, especially after the lapse of eighteen years.
    The facts necessary to understand the case appear in the opinion of the court.
    
      John F. Ennis and W. F. Jones for complainants:
    The complainants contended that from the facts in the cause there is both a legal and violent presumption that the note alluded to has long since been paid. It is averred that the note has been fully paid. No person can read the proofs without having a moral conviction of it; and the lapse of time and the staleness of the demand add to the conclusiveness of the presumption.
    
      A court of equity is not bound by any fixed, unalterable rule with regard to the period of limitation of actions. In the language of Lord Camden, “ It could not properly define the time of bar by any positive rule to an hour, a minute, or a year; it was governed by circumstances'' Courts of equity refuse their aid where a party for a long period of time has-acquiesced or neglected to pursue his remedy, and the public peace requiring an end of suits,, he abandons his remedy by submission, or forfeits it by neglect; and this rule will be more especially applied where, by reason of this neglect or delay, rights have been acquired which it would be unjust to disturb. 2 Spence Eq. Juris., p. 61; 17 Vesey, pp. 98, 99; Jones vs. Turberville, 2 Vesey, 11; Reade vs. Reade, note 3, 5 Vesey, 744; Stuart vs. Mellysh, 2 Atkyns, 610; Rayner vs. Pearsall, 3 Johns. Ch., 579.
    In Ellison vs. Moffatt, 1 Johns. Ch., 46, Chancellor Kent says: “It would not be sound discretion to overhaul an account in favor of a party who has slept on his rights for such a length of time, especially against the representatives of a party who have no knowledge of the original transaction. It is against the principles of public policy to require an account after the plaintiff has been guilty of so great laches. The bill must be dismissed on the ground of the staleness of the demand.” In this case the laches had been eighteen years. Sterndale vs. Hawkinson, 1 Sim., 393, the vice-chancellor says: “But as courts of equity will not entertain stale demands, they have thought proper to adopt the limit of six years, in analogy to the statute.” Martin vs. Heathcote, 2 Eden, 169; Archerly vs. Roe, 5 Vesey, 565; Barber vs. Barber, 18 Vesey, 286; Mooer vs. White, 6 Johns. Ch., 369; Beckford vs. Wade, 17 Vesey, jr., 87; Peebles vs. Reading, 8 Serg. & R., 484. A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, of acquiesced for a great length of time. Pratt vs. Vattier, 9 Pet., 416; vide also Kane vs. Bloodgood, 7 Johns., 93; Decouch vs. Lavelear, 3 Johns., 190; Enos vs. Hunter, 4 Gilm., (Ill.,) 211. “ Courts have been ever careful to examine into every circumstance which may affect the claim, as the lapse of time, &c., and will not grant the relief where the claim has been allowed to lie dormant for an unreasonable length of time, * * * especially where no claim has been set up during the life-time of the trustee. And the personal representatives are affected by the delay or acquiescence of the decedent to the same extent as if it were their own.” Bowman vs. Wathen, 1 How., 189; Hughes vs. Edwards, 9 Wheat., 189; Hume vs. Bedle, 17 Wall., 336. Let us see the full effect of lapse of time and laches, as applicable to this case. In the case of Spring vs. Gray, 2 Mason, 523, decided in 1830, Judge Story says: “-I own myself to be one of those who consider the statute of limitations a highly beneficial statute, and entitled as such to receive, if not a liberal, at least a reasonable, construction in furtherance of its manifest object. It is a statute of repose, the object of which is to suppress fraudulent and stale claims from springing up at great distances of time, and surprising the parties or their representatives when all the proper vouchers and evidence are lost, or the facts have become obscured from the lapse of time, or the defective memory, or death, or removal of witnesses. The defense, therefore, which it puts forth is an honorable defense, which does not seek to avoid the payment of just claims and demands, admitted now to be due, but which encounters in the only practicable manner such as are ancient and unacknowledged, and, whatever may have been their original validity, such as are now beyond the power of the party to meet with all the proper vouchers and . evidence to repel them. The natural presumption certainly is, that claims which have been long neglected are unfounded, or at least are no longer subsisting demands; and this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the diligence of creditors and guards innocent persons from being betrayed by their ignorance or their overconfidence in regard to transactions which have been dimmed by age.”
    
      R. K. Elliot, for defendant:
    There is no averment, much less any proof, of the payment of Hives’s debt in full, and therefore the court cannot find that it has been paid merely by lapse of time. No presumption of payment sufficient to authorize a release of a deed of trust executed to secure a debt arises iu law until after the lapse of twenty years from the maturity of the debt, without demand of principal or interest in the mean time. Powell on Mortgages, vol. 1, pp. 392, 393, note; ibid, vol. 3, p. 1155 ; Kirk vs. Parkhill, 1 MacArthur, 28, and authorities cited. The fact that the judgment on the note might be barred by the statute of limitations does not operate to extinguish the collateral remedy under the deed of trust executed to secure the note. Bank of Metropolis vs. Guttschlick, 14 Pet., 19. Parol testimony tending to show an agreement on the part of the defendant’s testator to waive his claim under the deed of trust to Parker & Maury is not sufficient to operate as a release of an instrument under seal. See statute of frauds, &c., Alexander’s British Statutes, 509; Greenl. Ev., vol. 1, § 292, et seq. And before the court can decree a release of the deed of trust in this case, it must find from the whole record, either, first, the full payment of the debt secured thereby ; or, second, such lapse of time as affords legal presumption of its payment; or, third, evidence of an executed agreement to release of equal dignity with the deed of trust.
    Therefore it is respectfully submitted that the decree of the court in special term is erroneous and should be reversed.
   Mr. Justice Wylie

delivered the opinion of the court:

On the 3d of July, 1852, one Charles W. Flint purchased from John O. Rives a part of lot 6, in square 254, in the city of Washington, for the sum of $13,000, of which $3,000 were paid in cash, and four notes of $2,500 each, payable in one, two, three, and four years after date, with interest, were given for the balance. These notes were simultaneously secured by a deed of trust upon the property. Subsequently, in the years 1853 and 1854, two other deeds of trust were placed upon the property by Flint. The first and the second of the Rives notes were duly paid at maturity, but the third and fourth were not so paid. The notes secured by the youngest of the three deeds of trust having matured and being unpaid, the trustee, William P. Williams, on or about the 1st of April, 1858, sold the property to Edward H. Pendleton for $9,800. At the date of this sale Rives’sdebt, with .interest, amounted to 86,725, and the subsequent incumbrances, including taxes ? &c., swelled the charges upon the property to $11,363.20.

As Rives’s was the oldest, and the sale was made under the youngest, of the three deeds of trust, the purchaser, unless under special arrangements, could take only such equity in the property as remained after the two other deeds of trust, which were prior in date to that under which the sale was made. These could not be affected by the sale. The proceeds of the sale could represent no more than the value of this remote equity, and no part of such proceeds could be applied toward payment of the earlier incumbrances.

We are convinced, however, rhat an agreement was entered into by all the parties, before the sale was made, that the sale should be clear of all the deeds of trust, and that these should be paid out of the proceeds pro rata. After deducting for taxes, insurance, expenses of sale, &c., there remained $8,633.30 of the purchase-money. The debts were—

To Rives.....................................$6,725 00

To Chubb Bros ............................... 2,910 00

To Lacy...................................... 53150

10,196 50

The money ($8,633.30) was divided between these debts pro rata, at the rate of 81§ per cent, to each claim; Rives receiving $5,691.50 upon a debt of $6,725, and accepting, as part payment, a note of the new purchaser, Pendleton, for $2,931, secured by a new deed of trust upon the property $ and this note was subsequently collected by him from Pendleton’s estate.

Unless by consent of Rives, the property must have been sold subject to his deed of trust, in which case he could have claimed no part of the proceeds. After having consented to share in the proceeds to the extent of 81| per cent, of his whole claim, his heirs ought not now to assert claim under his deed of trust for the deficiency, especially after so great a lapse of time. The notes secured by that deed were dated 3d of July, 1852, and the last of them to mature fell due in July, 1856; about eighteen years prior to the institution of the present suit.

It is quite probable that Mr. Eives entertained the notion that he might share in the proceeds of the sale made in 1858 and still hold his deed of trust as security for any deficiency; for in no other way can we account for his consent to come in on the proceeds pro rata with junior incumbrancers, when his security was absolutely perfect for the whole of bis claim. But that was impracticable, except with the consent both of Flint, the debtor, and of Pendleton, the purchaser. The latter is dead, and Flint, whose testimony has been taken in the cause, says that by agreement of all the parties the sale .was to be clear of all the incumbrances. This testimony is also very strongly corroborated by the evidence of A. Thomas Bradley as to the declarations of Eives himself. At all events, he could not now be heard to set up a claim at war with his own acts; and his heirs are in no better situation.

We think the deed of trust in question constitutes such a cloud upon the complainant’s title as ought to be removed.

The decree below affirmed.  