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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Page 264   View pdf image (33K)
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264 LING AN v. HENDEESON.—1 BLAND.

a *plea of limitations, adjudged to be barred; yet that
would not have affected the party's remedy upon the mort-
gage; because, the suit in Chancery upon the mortgage involves the
title to the land, which, by analogy, can only be barred by the-
limitation of twenty years. At law the lapse of twelve or three
years is an absolute bar to the remedy upon a bond or simple con-
tract. But a mortgage is a security of a higher and more durable
nature; one by which the right to the land is pledged for the pay-
ment of the debt. The lapse of twenty years, in such cases, has
been allowed, by analogy, and not by any direct operation of the
statute limiting the time within which an entry into land must be
made, to raise a presumption, either that the debt so secured never
was due, or that it had been paid. Toplis v. Baker, 2 Cox, 123;
Pow. Mort. 361, note T, 393 note, 1153, 1155. And, upon the same
principles, a similar presumption of satisfaction after the lapse of
twenty years has been held to be a bar to a bill for the recovery of
the purchase money founded on the vendor's equitable lien. Bid-
lake v. Arundel, 1 Rep. Cha. 93; Hunton v. Davis, 2 Rep. Cha. 44;
Matthews Presum. 395. But, where a mortgage, and a bond or
note has been given to secure the payment of the same debt, the
creditor may sue on all his remedies at the same time. He may
file a bill in Chancery to foreclose, bring an action of ejectment
and also an action upon the bond or note. The lapse of twelve or
three years would be a bar of his action upon the bond or note;
but the ejectment could only be barred by a lapse of twenty years.
The bill in Chancery to foreclose the mortgage or to enforce the
equitable lieu, being analogous to the proceeding at law by eject-
ment upon the mortgage, can only be barred by a similar lapse of
time. Pow. Mort. 966, note G; Hughes v. Edwards, 9 Wheat. 494.
Hence, although issue has been joined on this plea, it must be re-
garded as a nullity; since there is nothing in the case to which it
can at all apply.

Recollecting that the deed of conveyance from James M. Lingan
to John Henderson, bears date in May, 1807, after which John
Henderson repeatedly acknowledged, that he had paid no part of
the purchase money; that a plea admits the truth of every thing
stated in the bill not denied by it; that there is no answer in sup-
port of this plea denying the truth of those acknowledgments
charged in the bill to have been made by John Henderson, which
would certainly take the case out of the statute had it been barred
in his life-time; and that this suit was instituted in November, 1821,
it is * perfectly evident, that the Statute of Limitations, in
no form in which it could have been relied on as a defence,
could operate as a bar to the equitable lien by which this land was
bound to the plaintiffs for the payment of the purchase money.
And it being entirely clear, from the pleadings and proofs, that
the purchase money agreed to be paid by the late John Henderson,.

 

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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Page 264   View pdf image (33K)
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