Hughes v. Edwards

• Decision Date: 01 February 1824
• Parties: HUGHES and others, Appellants , v. EDWARDS and Wife, Respondents
• Court: U.S. Supreme Court

22 U.S. 489

6 L.Ed. 142

9 Wheat. 489

HUGHES and others, Appellants, v. EDWARDS and Wife, Respondents.

February Term, 1824

APPEAL from the Circuit Court of Kentucky.

Feb. 28th.

This cause was argued by Mr. Clay,^a for the appellants, and by Mr. Wickliffe, for the respondents.

March

Mr. Justice WASHINGTON delivered the opinion of the Court.

This is an appeal from a decree in equity of the Circuit Court for the district of Kentucky. Edwards and wife, the plaintiffs in the Court below, filed their bill in that Court, on the 8th of June, 1816, in which they charge, that the female plaintiff, before her coverture, advanced, by way of loan, to James Hughes, her brother, the sum of 770 2s. 4d., for which he gave his bond, bearing date the 10th of September, 1793, with condition to pay the same on the 12th of the same month; and for securing the said debt, she took from the said Hughes a mortgage upon sundry lots, situate in Lexington, in Kentucky, which are particularly described. It further charges, that the debt still remains due and unpaid; and that the defendant, Hughes, subsequent to the execution of the mortgage deed, had sold part of the mortgaged premises to Gabriel Tandy, David and James M'Gowan, Robert Wilson, Samuel Patterson, James Wilson and John Anderson, John Parker, and William Bowman, all of whom are alleged to have purchased with legal notice of the plaintiff's lien on the said property, the deed having been duly recorded in the County Court of Fayette, agreeably to law. The mortgagor, and the purchasers under him, all of whom are stated to be citizens of Kentucky, are prayed to be made defendants; and the prayer of the bill is, that the defendants may be decreed to pay the aforesaid debt, with interest, &c. and on failure, that the equity of redemption of the defendants be foreclosed, and the mortgaged property decreed to be sold, to satisfy the said debt, &c. The bill alleges the plaintiffs to be aliens, and subjects of the King of Great Britain. The deed of mortgage, dated the 14th of February, 1794, which (as well as the bond referred to in it) is made an exhibit, contains a defeasance, that the mortgagor should pay the said sum of 770 2s. 4d., with lawful interest thereon, according to the condition of the bond recited in it. It was duly proved and recorded in the County Court of Fayette, on the 11th of March, 1794.

Tandy and Patterson severally answered this bill, each of them admitting himself to be in possession of certain parts of the mortgaged premises, under a bona fide conveyance, for valuable consideration paid, from the mortgagor, or others claiming under him, and without notice of the mortgage, other than the constructive notice given by the record of the same. They allege the continued possession of the mortgaged premises, from the date of the mortgage, by the said Hughes, or those claiming by purchase under him; and rely upon the length of time, and uninterrupted possession, as grounds for presuming that the debt has been paid, or released, in bar of the relief sought.

M'Gowan, and Hughes, the mortgagor, having died pending the suit, the guardians ad litem of their heirs and representatives severally answered, not admitting any of the charges in the bill, and relying upon the presumption of payment, or a release of the debt, from length of time.

The bill was dismissed, as to all the defendants, except Hughes' heirs, Patterson and Tandy, upon their answers coming in; and after one or more interlocutory decrees, the Court pronounced a final decree of foreclosure, as to the above defendants; and in case the balance found to be due by the report of the commissioner, should not be paid by a certain day, a sale of the mortgaged property, in which the equity of redemption was foreclosed, was decreed.

It was admitted by the parties, that the defendants had made lasting and valuable improvements on the mortgaged property claimed by them; and that the female plaintiff, shortly after the date of the mortgage, left the United States, and that neither she, nor her husband, has been since within the United States.

Amongst the exhibits filed in the cause, are two letters from James Hughes, the mortgagor, to the female plaintiff, the one bearing date the 24th of February, 1803, and the other the 17th of December, 1808; in the former of which, he recognises distinctly the existence of the mortgage, and in both, promises to make remittances as soon as it should be in his power.

The counsel for the appellants insist upon the following objections:

1. That the mortgage deed is a void instrument, the defeasance being to pay the money on the day it became due by the bond, viz. on the 12th of September, 1793, which was impossible, that day having already passed.

2. The plaintiffs, being aliens, by their own showing, cannot hold lands in Kentucky, and, therefore, cannot maintain a bill to foreclose this mortgage.

3. The plaintiffs are barred of their right to foreclose, by length of time.

4. That the mortgaged property ought not to have been made liable to the payment of this debt, beyond its unimproved value.

1. The first objection is well founded in point of fact; but as to its legal consequences, it was in a great measure answered by the concession which the learned counsel, who urged it, was constrained to make. He admitted the law to be, as it unquestionably is, that if a deed for land is to be made void, by the happening of a subsequent condition, the performance of which is impossible at the time the deed is made, the condition only is void, and the estate of the grantee becomes absolute. But the use which he endeavours to make of the objection, was to turn the respondents out of the Court of equity, and to leave them to their legal remedy, by ejectment, to recover the possession of the granted premises, in which it was supposed they might be successfully encountered by the statute of limitations. But in what respect the situation of a grantee in a deed without a defeasance, but which was intended by the parties to operate only as a security, differs from that of an ordinary mortgagee, in respect to jurisdiction, and the act of limitations, is not perceived by the Court. The latter may pursue his legal remedy by ejectment, and he may, at the same time, file his bill, for the purpose of foreclosing the mortgagor of his equity of redemption. The objects of the two suits are totally distinct; and it is no objection to the remedy sought in equity, that the plaintiff has another remedy which he may pursue at law. In the one, he seeks to obtain possession of the mortgaged premises; and in the other, to compel the mortgagor to pay the debt, for the security of which the mortgaged property was pledged. Whether the defendant could avail himself of the act of limitations in the former case, whilst the equitable remedy of the plaintiff is subsisting, is a question which need not be decided in the present case, as the parties are now before a Court of equity. The effect which length of time may have upon the plaintiff's rights in that Court, will be considered under another head.

The principles here laid down, are not less applicable to the case of an absolute deed, which is intended by the parties to operate as a security for a debt, than they are to that of a common mortgage. A Court of equity looks at the real object and intention of the conveyances; and when the grantor applies to...