
    COURT OF APPEALS,
    JUNE TERM, 1793.
    William B. Lamar against Jones and Clarke.
    THIS was an appeal from a decree of the chancellor, dismissing the bill of the complainant at February term, 1791.
    
    The bill, filed on the 2d of April, 1785, states that John Lamar, father of the complainant, being indebted to Bryan Philpot, of London, merchant, for securing the payment of the money, on the 1st of October, 1756, executed a mortgage of .two tracts of land, subject to a clause of redemption on the 1st of October, 1757. He also mortgaged sundry negro slaves. That the said John Lamar continued in possession of the lands and negroes until his death, in the year 1759, leaving a widow and the complainant, his only child. That the said Philpot, after the death of the said John Lamar, took possession of the said lands and negroes, and sold the negroes for more than the interest due, and a part of the principal ; that the heir of Philpot sold the said land for 100/. on the 28th of March, 1760, and conveyed the same to the ancestor of the defendants; that the complainant, on the 7th of November, 1783, paid the said Philpofs agent the principal and interest due on the said mortgaged premises, and which were released to him; that the complainant tendered to the defendants the sum of. 150/.; that the defendants have made considerable profits from the land, &c.
    The answer is, that the length of time bars the complainant’s claim and right of redemption.
    Testimony was given that John Lamar died the 5th of November, 1756, in possession of the land; and the complainant is his son and heir at law, and was about twelve years old when his father died.
    
      Hanson, chancellor,
    gave the following decree:
    Without any arguments of counsel, except those on the part of the complainant Lamar, being of opinion that more than twenty years after the possession of the mortgagee and of those claiming under him had elapsed before the filing of the complainant’s bill, and that more than ten years had elapsed after the arrival at full age of the complainant, and before the filing of this bill, and that no interest had been in the mean time paid on the mortgage, and the defendants in their answers having relied on the lapse of time as a bar to the redemption of the mortgage; and it appearing unreasonable, after such a lapse of time, change of circumstances and transfers of the property, that the defendant should be entangled in a long, difficult and perplexed account; and the chancellor being of opinion, that a limitation of time, within which an application to this court shall be made for the redemption of lands, held by and under the mortgagee, without any receipt of principal or interest of the mortgage money, and without circumstances to show the meaning of the parties, that a redemption might be at any time, is peculiarly proper for the condition of this country; and the time limited by law for making an entry into lands, held under an adverse title, having with great propriety been adopted by the court of chancery in England, for barring the redemption of lands held peaceably under a mortgage, after the day of payment; and the said limitation havingalready been adopted by this court, and the time within which an entry may, be made on lands held by an adverse title, being either twenty years after the right accrued, or ten years after the arrival at full age, in case the right accrued to the person claiming during his infancy; and the chancellor being of opinion, that inasmuch as the legislature of this state did not think proper to suspend, during the late war, the operation of the acts of limitation with respect to a right of entry, (as it did in other cases,)this court ought not, by allowing a suspension, to introduce a variance between the rules of law and the rules of equity, which have so often, by chancellors in England, been declared the same with respect to the limitation of suits; and the chancellor being further of opinion, that even if a suspension be allowed by this court, it could not be allowed for more than four years, it being well known that during the war there was no obstruction to the prosecution of suits in this court for more than the said number of years, since the possession of the mortgagee, and almost twenty years since the arrival at full age of the complainant had elapsed before the filing of this bill.
    It is, therefore, this 9th day of March, 1791, by the chancellor and the authority of this court, adjudged, &c. that the complainant is not entitled to the relief prayed by his bill, and that the said bill be dismissed, but without costs.
    
      In the Court of Appeals.
    
    Cooke, for the appellant.
    The court of chancery is not bound in cases of redemption of mortgages by the statute of fames ; but it has been adopted in many cases by analogy in equity to the cases at law, in order to quiet possessions.
    The chancellor will always exercise the power of letting in circumstances, if any exist, if they are necessary to do equity. If it were otherwise, he would tie himself down without law, and in many cases contrary to equity.
    Where there has been great improvements made, or where it would be difficult to state the account, time is always urged against the redemption. In this case, no improvements have been made, and the account can be stated in half an hour. But even cases under such circumstances, do not always prevail against the claim of redemption. See 2 Vern. 377. and Pr. Chan. 116. where there was a decree to redeem, because an account had been stated 12 years before, although there had been forty years5 possession and several descents.
    When the time begins to run in the life of the ancestor, the courts of chancery have run it on against the infant in most cases j but not where the time commenced, as in this case, in the infancy of the complainant. 2 Eq. Abr. 602. note.
    War and an interruption of the regular administration sjf justice, are circumstances in this case against adopting the rule of law. The court will look into circumstances, and here would do an injuctice if they are rejected. 2 Eq. Abr. 600. pl. 8. 2 Brown's Ch. Ca. 397. Bac. Abr. tit. Mortgage, 654. Powell on Mort. 149. 160.
    Another reason given in 2 Eq. Abr. 602. is, that the mortgagor would be entitled to redeem for part, and, therefore, he shall for the whole. Now in this case the complainant is not entitled to a part till the death of his mother.
    
      Key & Duvall, for the appellee,
    cited 1 P. Wms. 268. 3 P. Wms. 287. 288. note. 2 Atk. 491. 494. 2 Eq. Abr. 600. pl. 28. 2 Vent. 340. 1 P. Wms. 270.
    Martin,
    (Attorney-General,) for the appellant, said the statute of limitations does not defeat the party of Ms right at law, but only bars his right of entry. That the case in 3 P. Wms. 288. was only an opinion of the judge, but was no decree, and cited Cha. Ca. 55.
    
   The Court

of Appeals gave the following opinion s

It is laid down as a rule, that mortgages are held not to be within the statute of limitations; but it was thought reasonable to establish a period at which, prima facie, the right of redemption shall be presumed to be deserted by the mortgagor unless he be capable of producing circumstances to account for his neglect; and chancery having adopted a variety of those circumstances, to wit, fraud, acknowledgment, infancy, ignorance, lawsuits, &c. of most of which the parties cannot avail themselves at common law, there is certainly a deviation in such cases from its strictness.

No case has been cited to show that courts of chancery have adopted that part of the clause of the statute of 21 Jac. I. which allows infants the liberty, after the twenty years are expired, to bring actions within ten years after their coming to full age; and the judges, after diligent search, not being able to find any, although from the year 1624,in which the statute was made, to the year 1793, many cases, in all probability, have happened ; an inference may be drawn from thence that a doctrine prevailed, that when adverse possession was taken from the infant, limitations did not run on him until his full age, and that this doctrine is not impeached in the dictum of Lord Talbot, in Belch £s? Harvey, as it is not an adjudged case; but on the contrary, there are adjudged cases where infancy, lawsuits and other circumstances, have excused the party, and where an infant being plaintiff, adverse possession was taken of him six years before he Came of age, and that period being accounted for by infancy, although twelve years had elapsed after his coming of age before bill filed; yet, as it did not amount to twenty years, he had a right to bring his bill, and the party here being similarly circumstanced, being six years an infant, and bringing his bill in time, if the six years be not accounted as part of the time.

We do, therefore, order and adjudge, that the decree of the chancellor be reversed, and that the appellant have liberty to proceed before him on the bill, and that he hear the cause upon the merits according to the course of that court.  