Hertle v. Schwartze

Mason, J., delivered the opinion of this court. The facts and circumstances of this case are fully and explicitly set out by the chancellor in his opinion. We have examined that opinion attentively, and while we do not deem it necessary to affirm all its legal propositions, yet we can find no reasons for reversing the decree which is based upon it. We concur with the chancellor, that the plea of limitations is a conclusive bar to a recovery in the present case.

In addition to his views we will remark, that there can be no valid reason assigned why the legal representatives of Gibbons could not have recovered this money, if any had been due, from Sehwartze and McDonald, as personalty, in an action at law. If this be true, clearly limitations would be a bar to a recovery, in the present suit, at this late day. If the title of Sehwartze and McDonald was not an absolute title to the property conveyed to them by Corry, they ³⁸³ could only have held it in the character of mortgagees, to secure the amount they had paid for Gibbons on his original purchase. But this is not a bill for pursuing mortgaged premises, which could only be reached through a court of equity.

Long before the institution of this suit the premises had been converted into money, and the excess, which is now claimed over and above the debt due the defendants, and for the recovery of which these proceedings have been instituted, could, without difficulty, have been reached by an action at law, either for money had and received, or a special action on the case. 11 Gill and John., 443, Oliver vs. Palmer and Hamilton. Indeed, under the authority just