[Spencer, J.
The principle was settled, in this court, in a case respecting Livingston’s Manor, that an actual possession of [611]*611tenants in different parts would draw to it the possession of the ' wild and unsettled part of the same patent.]
In Hales v. Hales,* a sleeping mortgage of 40 years was presumed to be paid. Where there is no other remedy for the debt but the land, there can be no redemption.
, The acknowledgment by a mortgagee to save the right of redemption, must be deliberate and explicit. A casual conversation between two persons is not sufficient.
Eight witnesses testify that the appellants sold the land as their own, though the title was at first by mortgage. The executors sold by virtue of the power in the will of Grant. Whether they had a legal power or not, is immaterial. It shows that they did not sell under the mortgage.
, The letter of Duane, unanswered and unnoticed, is evidence of nothing. The fraud as to the attornment to him, was matter of law, arising from the facts set forth in the pleadings; .it was not necessary to put it in issue.
The heirs of Duane did not come in until 1806, and they ought not, by a nption of reference back to the commencement of the suit, to stand on better ground than they otherwise would have done. James C. Duane took no step, as heir, until 1806. Suppose after the heirs were admitted as complainants, the executors of Duane had been struck out as useless parties, could they be considered as having filed their bill in 1799 ?
Thompson, J.
Whoever comes into a court of justice to seek redress, must show in himself some interest in the subject matter of the claim set up, or it must appear that his name is used piro forma, for the benefit of the party really in interest. In the present case, the bill filed in the court of chancery, had for its object the redemption of a mortgage given by David Shaw to James Grant, bearing date the 25th of November, 1765. If the respondents have shown no interest in themselves, or a right to redeem the mortgage, on their own account, or on account of others, with whom some connexion is shown, and whose interest they have a right to represent, their claim cannot be supported, notwithstanding some other person might have a right to enforce the [612]*612same claim. It cannot be allowed to them to speculate on the claims of others, and redeem at their peril, and then litigate with those who may have the right.
No person can come into a court of equity for a redemption of a mortgage, but he who is entitled to the legal estate of the mortgagor, or claims a subsisting interest under him. (1 Pow. on Mort. 343. 381, 382. 1 Vern. 182.) The respondents claim the right to redeem, in consequence of a deed given by David Shaw, (the mortgagor,) together with John Alexander and John Gregg, to James Duane, and two others, of whom -Duane was the survivor, bearing date the 21st of July, 1766. This deed is the title on which they rest; and that title is denied by the appellants, in their answer in the court of chancery. And it is competent for them here, to contest its legal effect and operation, or show that it is null and void.
The objection to the respondents’. right to redeem, does not strictly fall within that class which relates to a defect of parties, but strikes at the merits of their claim, by totally denying any interest whatever in them. But if the objection be considered as resting on the want of parties, it having been made in the court below, it may be insisted on here. This is a deed in trust, for the benefit of creditors, and it will be perceived from the date of it, that the claim now set up is á very stale one, so that all reasonable presumptions may and ought to be indulged against it. After the lapse of thirty or forty years, such a claim ought to be viewed with a jealous eye, unless accompanied with a satisfactory excuse for the delay to assert it. The deed given to the trustees was for the purpose only of paying the debts of the grantors, and it is no more than . reasonable to presume, that that purpose has been accomplished. These debts must have been long since barred by the statute of limitations, and the legal presumption of payment. The trust has, therefore, been executed. It ought to be observed, that the mortgaged premises were the sole and exclusive property of Shaw, and not the property of the grantors jointly. Nor is there in the deed of trust, any specification of those lands, although there is of other real property. They are comprised in the general descriptive clause in the deed. And the presumption is strong and almost irresistible, that the object of the trust Was answered out of other property included in ihe trust deed; especially, as it did not extend to the payment of debts secured by mortgage. And the trustees probably chose rather to resort to property unencumbered, than to discharge the encumbrancé on this land, which was, -most likely, at [613]*613that day, nearly its full value. It was not the intention of the grantors, by this deed of trust, that the trustees should take more property than enough to satisfy the debt. And such is the legal effect and operation of the deed. For it expressly provides, that if the debts could be satisfied by sale of a part only of the premises thereby granted, the trustees should reconvey the residue. A claim of a right to execute this trust, without showing that there are yet debts unpaid, is against the spirit and intention of this covenant. If all the debts were paid, the trustees were bound to reconvey; and equity, in such cases, .will presume that done which ought to have been. done. It appears to me, therefore, that the respondents have failed to show a subsisting interest, under the "mortgagor, by not showing the existence of any debts yet to be satisfied out of the trust estate. If the trust has been executed without having recourse to the lands in question, they fall under the residuary part, which, as it appears from the deed itself, cannot belong to the trustees or their heirs. And the lapse of time is, of itself, amply sufficient to warrant the presumption of an execution of the trust.
I have thus far considered the respondents’ claim, oh the supposition that the deed in trust, now set up, was the deed under which the composition and settlement of the debts of Alexander, Gregg and Shaw, were made. There is, however, strong ground for the presumption, that the arrangement contemplated between the parties, of which the deed only forms a part, was either never consummated, or was abandoned or superseded by another arrangement. The deed itself is not produced. Although it purports to contain covenants on the part of the trustees and creditors, it does not appear to have been executed by either of them. Reference is made to a schedule, purporting to be annexed to the deed, and to form a part of it, but which does not now accompany it. All this tends very strongly to show that the signing of this deed by Alexander, Gregg and Shaw, (which was on their part imperfect, as Shaw could not execute it for Alexander,) was only an inchoate transaction, and never consummated. This presumption is rendered almost certain, by the recitals in the deed, of Alexander and Gregg, of
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[Spencer, J.
The principle was settled, in this court, in a case respecting Livingston’s Manor, that an actual possession of [611]*611tenants in different parts would draw to it the possession of the ' wild and unsettled part of the same patent.]
In Hales v. Hales,* a sleeping mortgage of 40 years was presumed to be paid. Where there is no other remedy for the debt but the land, there can be no redemption.
, The acknowledgment by a mortgagee to save the right of redemption, must be deliberate and explicit. A casual conversation between two persons is not sufficient.
Eight witnesses testify that the appellants sold the land as their own, though the title was at first by mortgage. The executors sold by virtue of the power in the will of Grant. Whether they had a legal power or not, is immaterial. It shows that they did not sell under the mortgage.
, The letter of Duane, unanswered and unnoticed, is evidence of nothing. The fraud as to the attornment to him, was matter of law, arising from the facts set forth in the pleadings; .it was not necessary to put it in issue.
The heirs of Duane did not come in until 1806, and they ought not, by a nption of reference back to the commencement of the suit, to stand on better ground than they otherwise would have done. James C. Duane took no step, as heir, until 1806. Suppose after the heirs were admitted as complainants, the executors of Duane had been struck out as useless parties, could they be considered as having filed their bill in 1799 ?
Thompson, J.
Whoever comes into a court of justice to seek redress, must show in himself some interest in the subject matter of the claim set up, or it must appear that his name is used piro forma, for the benefit of the party really in interest. In the present case, the bill filed in the court of chancery, had for its object the redemption of a mortgage given by David Shaw to James Grant, bearing date the 25th of November, 1765. If the respondents have shown no interest in themselves, or a right to redeem the mortgage, on their own account, or on account of others, with whom some connexion is shown, and whose interest they have a right to represent, their claim cannot be supported, notwithstanding some other person might have a right to enforce the [612]*612same claim. It cannot be allowed to them to speculate on the claims of others, and redeem at their peril, and then litigate with those who may have the right.
No person can come into a court of equity for a redemption of a mortgage, but he who is entitled to the legal estate of the mortgagor, or claims a subsisting interest under him. (1 Pow. on Mort. 343. 381, 382. 1 Vern. 182.) The respondents claim the right to redeem, in consequence of a deed given by David Shaw, (the mortgagor,) together with John Alexander and John Gregg, to James Duane, and two others, of whom -Duane was the survivor, bearing date the 21st of July, 1766. This deed is the title on which they rest; and that title is denied by the appellants, in their answer in the court of chancery. And it is competent for them here, to contest its legal effect and operation, or show that it is null and void.
The objection to the respondents’. right to redeem, does not strictly fall within that class which relates to a defect of parties, but strikes at the merits of their claim, by totally denying any interest whatever in them. But if the objection be considered as resting on the want of parties, it having been made in the court below, it may be insisted on here. This is a deed in trust, for the benefit of creditors, and it will be perceived from the date of it, that the claim now set up is á very stale one, so that all reasonable presumptions may and ought to be indulged against it. After the lapse of thirty or forty years, such a claim ought to be viewed with a jealous eye, unless accompanied with a satisfactory excuse for the delay to assert it. The deed given to the trustees was for the purpose only of paying the debts of the grantors, and it is no more than . reasonable to presume, that that purpose has been accomplished. These debts must have been long since barred by the statute of limitations, and the legal presumption of payment. The trust has, therefore, been executed. It ought to be observed, that the mortgaged premises were the sole and exclusive property of Shaw, and not the property of the grantors jointly. Nor is there in the deed of trust, any specification of those lands, although there is of other real property. They are comprised in the general descriptive clause in the deed. And the presumption is strong and almost irresistible, that the object of the trust Was answered out of other property included in ihe trust deed; especially, as it did not extend to the payment of debts secured by mortgage. And the trustees probably chose rather to resort to property unencumbered, than to discharge the encumbrancé on this land, which was, -most likely, at [613]*613that day, nearly its full value. It was not the intention of the grantors, by this deed of trust, that the trustees should take more property than enough to satisfy the debt. And such is the legal effect and operation of the deed. For it expressly provides, that if the debts could be satisfied by sale of a part only of the premises thereby granted, the trustees should reconvey the residue. A claim of a right to execute this trust, without showing that there are yet debts unpaid, is against the spirit and intention of this covenant. If all the debts were paid, the trustees were bound to reconvey; and equity, in such cases, .will presume that done which ought to have been. done. It appears to me, therefore, that the respondents have failed to show a subsisting interest, under the "mortgagor, by not showing the existence of any debts yet to be satisfied out of the trust estate. If the trust has been executed without having recourse to the lands in question, they fall under the residuary part, which, as it appears from the deed itself, cannot belong to the trustees or their heirs. And the lapse of time is, of itself, amply sufficient to warrant the presumption of an execution of the trust.
I have thus far considered the respondents’ claim, oh the supposition that the deed in trust, now set up, was the deed under which the composition and settlement of the debts of Alexander, Gregg and Shaw, were made. There is, however, strong ground for the presumption, that the arrangement contemplated between the parties, of which the deed only forms a part, was either never consummated, or was abandoned or superseded by another arrangement. The deed itself is not produced. Although it purports to contain covenants on the part of the trustees and creditors, it does not appear to have been executed by either of them. Reference is made to a schedule, purporting to be annexed to the deed, and to form a part of it, but which does not now accompany it. All this tends very strongly to show that the signing of this deed by Alexander, Gregg and Shaw, (which was on their part imperfect, as Shaw could not execute it for Alexander,) was only an inchoate transaction, and never consummated. This presumption is rendered almost certain, by the recitals in the deed, of Alexander and Gregg, of December, 1767. No objection can be made to these recitals, by reason of this being a deed-poll. It is a deed to Duane, and the other trustees, and for their benefit. And the inference is irresistible, that it was accepted by them, and if so, they are bound by the recitals. The . express object of this deed appears to have been, to release and discharge the trustees [614]*614from some of the covenants contained in a deed of composition before executed by Alexander, Gregg and Shaw, of the first part, their creditors, whose names were specified in a schedule thereto annexed, of the second part, and the trustees of the third part. It expressly recites that the greater part of the creditors had duly become parties to-, and executed the deed of composition. The deed produced is not so executed. The covenants recited are very different from those contained in the deed produced, notwithstanding the recitals purport to be in luxe verba. By the recital, the deed of composition was to be void and of no effect, if any of the creditors should refuse to release and discharge their debts. And on such refusal the trustees covenanted to reconvey. In the deed before us, no such condition, or covenant is to be found. The recited deed purports to contain a covenant, on the part of the trustees, to pay Gregg 2,500L if the creditors should refuse to release their debts; no such provision is contained in the deed produced. Other variances might be pointed out, but enough has been shown to justify the conclusion, that the deed referred to by these recitals is not, the one produced, and on which the respondents rest their title; and if this deed be put out of view, there is nothing to show that the mortgaged premises were ever conveyed to the trustees. For admitting there was another deed of composition to which the recitals refer, there is no evidence that it included the lands in question.
March 10th, 1812.
This view of the case renders it unnecessary for me to examine whether the equity of redemption is not barred by the lapse of time, and the possession held by the mortgagee and his representatives. The case presented is certainly a very strong one on this point. It will be time enough, however, to decide it, when the heirs of Shaw, who alone, from any thing that appears, are entitled to redeem, shall think fit to ask a redemption. At present, it is only necessary to decide on the rights of the respondents, and, as I am satisfied they do not show themselves entitled to redeem, I think the decree of the court of chancery ought to be reversed.
This being the unanimous opinion of the court; it was thereupon, ordered, adjudged and decreed, that the decree of the court of chancery be reversed, that the respondents’ bill be dismissed; that the respondents pay to the appellants their costs in the court of chancery, to be taxed, and that the record be remitted, &c. Judgment of reversal.
See Jackson, ex dem. Livingston, v. Schutt, cited by Kent, Ch. J. in Jackson v. Lunn. (3 Johns. Cas, 118.)