Ayer v. Stewart

By the Coivrt Berry, J. "We are unable to conceive bow tbe plaintiff could have any claim against Stewart for the surplus money arising from the foreclosure of the Piper mortgage, unless it be upon the basis that as this surplus, while in the hands of the sheriff, belonged to the plaintiff, a second mortgagee, (upon the ground stated in the dissenting opinion in this case) the law would imply that Stewart took the same upon a trust tor the use and benefit of the plaintiff. Assuming that a trust of this nature would be implied, the plaintiff’s right to the surplus in the hands of Stewart, and as against Stewart, accrued at the moment when Stewart received the money. By the very act of demanding and receiving the money as owner of the mortgaged premises, as he claimed to do,- Stewart denied and repudiated the right of the plaintiff to the money, and ' claimed the same in his own right, and adversely to the plaintiff. Stewart received the surplus March 5th, 1859, and this action was commenced about February 1st, 1867, nearly eight years after the time when the plaintiff’s right ■ against Stewart accrued. Of the foreclosure, the plaintiff was bound to take notice, and there is nothing to show that he was not aware that the surplus was paid over to Stewart immediately after the sale. The plaintiff’s cause of action against Stewart is in the nature of an action at law for money had and received, and upon the principle that equity follows the analogy of the 1 aw in regard to limitations of actions, and upon the well established doctrine that, even where there is no analogous statutable bar, a court of equity will refuse relief for stale demands where a party has slept upon his rights, we agree with the learned Judge below, that this action should be *99 held to be barred bj lapse of time. Angell on limitations, Secs. 25, 26; Stafford vs. Richardson, 15 Wend., 306 . Order affirmed.