
    Roxanna Alden, Individually and as Executrix, Plaintiff, v. Charles E. Barnard, as Executor, Defendant.
    (Supreme Court— Oneida Special Term,
    January, 1896.)
    Mortgage—Fraudulent satisfaction—Limitation.
    About the time of .their marriage plaintiff’s ' husband obtained moneys from her under an agreement to use the same in procuring assignments to her of certain mortgages against his real estate, but, instead of so doing, procured- their satisfaction.' Subsequently, upon. her learning of the misappropriation, it was agreed between them that she should have the same .interest in the land as if she held the ■ .assignments and that the husband should be released from payment of • interest as long as they resided together on the premises, which -they continued to do until his death. Held, that as between, them the mortgages were not paid; that she was the equitable owner of such, mortgages, and that, under the subsequent agreement, the running • of the Statute of Limitations against her right .to enforce them was ' stayed until the death of her husband. ' -
    - Action to have the record of satisfaction of two -mortgages . / canceled and the plaintiff adjudged the owner thereof and for their foreclosure. - ' ■
    
      
      J. A. Pease and S. M. Lindsley, for plaintiff.
    
      Charles G. Irish and Thos. S. Jones, for defendants 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,-tibtained 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 $8,00 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 misap- ■ propriation 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 considers what ought to l>e 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 ; 26 N. E. Rep. 444; Purser v. Anderson, 4 Edw. Ch. 18.

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 possession and right of possession under the agreement had a, charactér- . istic additional to that of a wife in the enjoyment, of her hus-'• • band’s real estáte^ and it was so recognized by her husband on ' a .subsequent occasion,-when she. complained bf 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 hé should rectify thematter,. 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 net 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... ' 9

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 -proof-. - ’ .

The plaintiff-is entitled "to judgment.

Judgment for .plaintiff.  