Didier v. Davison.

state, remote from his former residence and from that of the creditor, and although the creditor should have no knowledge of such return.

In 3 Cranch, 174, before cited, the plaintiff claiming under the Virginia statute, was held barred, because he passed through Alexandria, a border town, and was a short time therein, but not as a resident.

And the case of Fowler v. Hunt, ubi supra, contains the decisive opinion of the Supreme Court, on this point, and it is according to the plain import of the statute and the dictates of good sense. The court says, "The coming from abroad must not be clandestine, and with an intent to defraud the creditor by setting the statute in operation and then departing. It must be so public and under such circumstances, as to give the creditor an opportunity by the use of ordinary diligence and due means, of arresting the debtor."

It is obvious that the creditor's knowledge of the defendant's return or coming here to reside, ought to have no influence in construing this clause. That would indeed be adding a new exception to the proviso in the statute.

Instead of adding to it, the Supreme Court in Sacia v. De Graaf, 1 Cowen, 356, held that they would not extend the exceptions in the statute by construction, to cases within the reason of the exceptions, but not within their letter; and in his illustrations the Chief Justice puts the case of the residence of the defendant in some obscure or remote part of the state, unknown to the plaintiff until six years have elapsed.

If legal rights are pursued in a court of equity, the legal operation of the statute must prevail.

At law, ignorance of the plaintiff's right, its fraudulent concealment, a mistaken idea that the defendant was discharged, and like grounds, for withdrawing claims from the effect of the statute of limitations, have been rejected in our courts. (Troup. v. Smith's Executors, 20 Johns. 33; 1 Cowen, 356, cited above; Leonard v. Pitney, 5 Wend. 30; Allen v. Mille, 17 ibid. 202.)

And in Humbert v. Trinity Church, 24 Wend. 587, the Court for the Correction of Errors decided that neither fraud in obtaining the possession, knowledge of the possessor that his claim is

Didier v. Davison.

wrongful as well as fraudulent, his fraudulently concealing the injury, nor the plaintiff's ignorance of it till after the statute had become a bar; will excuse the negligence of the owner in not exhibiting his bill within the prescribed period. The same point as to his ignorance, was decided by the Court of Appeals in Kentucky, in Thomas v. White, 3 Litt. R. 177; and see Cholmondely v. Clinton, 2 J. & W. 155; and 4 Bligh's P. C. 1, 119.

We may therefore lay out of view the complainant's ignorance of Davison's residence here in 1834, 5.

It suffices that his return was open and public, and with the intent to reside in this state. And I may add, it is evident that the complainant might and would with very slight diligence, have found and arrested him here. If the complainant and his partner had not deemed this claim stale and wholly incapable of being enforced, they would have kept a vigilant eye on the movements of one so largely their debtor. It would not have been possible for him to have been absent with his family from Carthagena for a year and a half, without their learning it, and learning his new place of residence.

The complainant does not appear entitled to any sympathy from the court, or any effort to relieve him from the bar of the statute, which I have no doubt is an effectual defence to his demand.

I have not commented upon the case of Bond v. Jay, 7 Cranch, 350, cited by the complainant's counsel, because in this state, accounts between merchants were within the statutory bar of six years. (Coster v. Murray, 5 J. C. R. 522; Barber v. Barber, 18 Ves. 286.)

The plea must be allowed, and the usual order entered.

Greenwich Bank v. Loomis.

THE GREENWICH BANK v. LOOмIs and LYMAN.

A purchaser pendente lite, will be bound by a decree in the suit, and the complainant need not make him a party, or otherwise notice his purchase. If he desires to defend the suit, he must make himself a party to it by a supplemental bill, before it terminates.

An original bill cannot be filed by such a purchaser, after a decree in the suit pending, to litigate anew or question the subject matter of such suit.

A bill of review can only be filed after enrolment, and then only for error apparent on the decree, or to produce relevant matter existing at the time of the decree but discovered afterwards. A bill in the nature of a bill of review, may be exhibited after the decree is entered, and before enrolment.

After a decree has been made by the chancellor, it is not competent for any vicechancellor to make any order or decree which would directly or indirectly discharge, alter or modify the same.

Held accordingly, where after a decree of foreclosure and sale obtained by default in a mortgage suit before the chancellor ; a purchaser, pendente lite, of the lands mortgaged, filed a bill before a vice-chancellor, praying for an adjudication that the mortgage never was a lien, or if it were that it belonged to such purchaser, and that the defendant in such suit from whom he bought, had a claim to the lands prior to the mortgage.

A judgment recovered for a debt secured by a mortgage on lands, cannot become a lien upon such lands; and a sale of the equity of redemption under an execution upon such judgment, will not confer any title upon the purchaser. And it makes no difference that the judgment was not recovered upon the bond accompanying the mortgage, so long as it was obtained for, or confessed to secure, the same indebtedness.

May 15, 16, 18; August 9, 1844.

THIS was an original bill in the nature of a bill of review, filed on the 4th of June, 1842, to obtain relief against a decree made in a suit before the chancellor, in which the defendant Loomis was complainant, and Peter Stuyvesant and others were defend

ants.

A part of the facts material to a proper understanding of those points of the opinion which were deemed worthy of being reported, are to be found in the decision. The other material facts are as follows.

On the 12th of July, 1839, Joseph R. Stuyvesant recovered a judgment for $10,212 32, against Peter Stuyvesant, and G. G.

Greenwich Bank v. Loomis.

Root, for a debt due a considerable time before. This judgment was the first one recovered against P. S. and became a lien upon all his real estate. Previous to this on the 25th of June, 1839, Peter S. to secure this indebtedness, executed a bond and mortgage to J. R. S. for $14,500, on divers lots in New York, and caused it to be recorded, without the knowledge or assent of J. R. S., as it was afterwards claimed.

On the 23d of August, 1839, Peter S. conveyed to the complainant Loomis, fourteen lots, including all those mortgaged to J. R. S. They were conveyed expressly subject to various liens, but not to the lien of J. R. S.'s mortgage. The consideration was a debt due from P. S. to Loomis and Lyman; both of whom knew of the judgment in favor of J. R. S.

On the 20th of September, 1839, J. R. S. for a nominal consideration assigned to Loomis, the bond and mortgage of Peter S. and the money due thereon. Loomis on receiving this signed a stipulation to J. R. S. reciting that they were assigned to enable him to perfect his title to three of the lots he had bought of P. S.; also reciting the judgment of J. R. S. as being a part of his demand against P. S. secured by the mortgage; and agreeing that the assignment of the bond and mortgage should not be deemed as cancelling the judgment or in any way impairing its force and validity against P. S., and that J. R. S. should have the same right to enforce the judgment against P. S. as if the assignment had not been made.

The assignment was recorded in October, 1839.

On the 25th of February, 1840, Loomis filed a bill in this court before the Chancellor, to foreclose this mortgage, and made Peter S., Joseph R. S., and others, defendants. A notice of the pendency of the suit was duly filed on the 2d of March, 1840. The bill was taken as confessed against J. R. S.; and the usual decree for a foreclosure and sale was made on the 3d day of August, 1841. This decree was duly enrolled, but there had been no sale of the premises under its provisions.

On the 20th of October, 1840, the Greenwich Bank sold to Joseph R. S., 600 shares of stock of the Hudson Fire Insurance Company, and received therefor an assignment of his judgment against Peter S. and Root. The bank knew of the mortgage,

Greenwich Bank v. Loomis.

and were assured it never had been accepted, and knew also of Loomis' purchase of the lots, but not of the assignment of the mortgage.

The bank proceeded to advertise and sell upon the judgment, the lots purchased by Loomis, and bid them in, and held the sheriff's certificate of the sale when this suit was commenced.

The bill charged that there was an agreement between Loomis and J. R. S. on assigning the mortgage, which prevented its becoming operative; that the mortgage never was delivered to or accepted by J. R. S.; that the decree on it was unduly and fraudulently obtained, and the bank has a full defence to the mortgage. It prayed that the mortgage be declared void, for an injunction against the execution of the decree, and that the judgment be declared a valid lien on the lots purchased by Loomis.

The answer denied the fraud and the agreement, and set up a good consideration for the assignment of the mortgage. It set forth the decree in the foreclosure suit, and insisted upon it as a bar against J. R. S. and against the bank claiming under him; and that the judgment and sale conferred no title upon the bank in respect of the mortgaged lots in question.

G. M. Ogden and W. H. Harison, for the complainants.

L. R. Marsh and S. P. Lyman, for the defendants.

THE ASSISTANT VICE-CHANCELLOR.-The allegation that the decree in the suit of Loomis against Stuyvesant and others, was unduly or fraudulently obtained, is not supported by any proof; and the complainants are entitled to no relief on that part of their bill.

The next important inquiry relates to their right to be heard in reference to the matters directly and inferentially settled by that decree.

Mr. Loomis filed his bill to foreclose the mortgage of Peter Stuyvesant in February, 1840. Joseph R. Stuyvesant was made a defendant, and a notice of the pendency and objects of the suit was filed in the county clerk's office, pursuant to the statute, on the 2d of March, 1840.