The act of Georgia confiscating the estate of the mortgagor is
no bar to the claim of the mortgagee, a British merchant, whose
debt was only sequestered during the war. The estate of the
mortgagor only was confiscated, not that of the mortgagee.
The act of limitations of Georgia does not apply to mortgagees.
The possession of the mortgagor is not adverse.
Page 8 U. S. 416
This was an appeal from a decree of the Circuit Court for the
District of Georgia, which dismissed the complainant's bill brought
to foreclose a mortgage.
The facts, as stated by MR. CHIEF JUSTICE MARSHALL in delivering
the opinion of the Court, were as follows:
In November, 1769, Alexander Wylly, then residing in Georgia,
executed his bond to Greenwood and Higginson, merchants of London,
for the sum of �2,108l. 4s. sterling, conditioned to pay �1,054 2s.
like money on or before 1 January, 1773, and also executed a deed
of mortgage (which was admitted to record in the secretary's
office) to secure the payment of the bond. Alexander Wylly took
part with the British in the war of our Revolution, in consequence
of which his estate was confiscated, and commissioners were
appointed to take possession of it and to sell it. In 1784, the
mortgaged premises were sold and conveyed by the commissioners to
certain persons in Savannah, who sold and conveyed them to James
Houston, who retained peaceable possession of them until his death.
In 1796, these lands were sold under execution by the marshal to
satisfy a judgment obtained against James Mossman as executor of
James Houston. The purchaser at the marshal's sale had notice of
the mortgage deed to Greenwood and Higginson.
This suit is brought against the agent of the purchaser, to whom
notice was given, and to whom the purchaser has since conveyed his
right, in order to obtain payment of the debt due from Wylly, and
to foreclose all equity of redemption in the mortgaged premises.
The bill was filed on 4 November, 1802.
Page 8 U. S. 418
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case,
delivered the opinion of the Court as follows:
It is contended on the part of the purchaser
1st. That the lands are exonerated from the mortgage by the
confiscation and sale thereof made by the State of Georgia.
2d. That they are exonerated by the length of time which has
intervened since that confiscation and sale, during which an
adverse possession has been held.
3d. That payment of the mortgage is to be presumed.
Several acts of confiscation were passed during the war by the
State of Georgia in which the name of Alexander Wylly is to be
found. That under which the defendants in this case claim was made
in the month of May in the year 1782. That act contains also a
clause confiscating generally the estates of British subjects, with
the exception of debts due to merchants residing in Great Britain,
which were sequestered. The debt due to Greenwood and Higginson
came within this exception, and the majority of the Court is of
opinion that the lien given by the mortgage on the land of Wylly
for the security of that debt was not confiscated.
The estate of Wylly, not the interest of Greenwood and Higginson
in that estate, being confiscated, it is not to be inferred that
the lien of Greenwood and Higginson on that estate was discharged.
The treaty of peace
Page 8 U. S. 419
was made while the estate remained unsold. The fifth article of
the treaty, after discovering much solicitude on the part of Great
Britain for the entire restoration of confiscated estates,
concludes with this clause:
"And it is agreed that all persons who have any interest in
confiscated lands, either by debts, marriage settlements, or
otherwise, shall meet with no lawful impediment in the prosecution
of their just rights."
This article applies to those cases where an actual confiscation
has taken place, and stipulates expressly that in such cases the
interest of all persons having a lien upon such lands shall be
preserved. Neither the confiscation nor any act in consequence of
the confiscation can constitute a legal impediment to the
prosecution of their just rights. The preceding part of the article
had contemplated sales of the confiscated property, and
consequently this clause must have been intended to charge the
lands, even in the hands of a purchaser. But respecting its
application to this particular case, the Court cannot conceive a
doubt. The lands, at the time of the treaty, remained unsold, and
the government, claiming them as confiscated, stipulates through
the proper constituted authorities for their liability to this
mortgage. If, then, the act of confiscation, independent of the
treaty, would be construed to destroy the claim of the mortgagee,
the treaty reinstates the lien in its full force, and the
subsequent sale of the property could only pass it with the burden
imposed upon it.
2d. Is this remedy barred by the act of limitations?
Upon an attentive consideration of that act, it appears to be
intended for suits at law, claiming the lands themselves, not to
suits in equity for the purpose of subjecting the lands to the
payment of debts for which they are mortgaged. The words of the law
would lead to that opinion, and it is confirmed by the
consideration that in such cases, the possession of the mortgagor
or those claiming under him is not adverse to but is compatible
with the rights of the mortgagee. Unless, therefore, this statute
has been otherwise construed
Page 8 U. S. 420
in Georgia, it would not be considered as applicable to such a
case as this. But this point must be decided in favor of the
plaintiffs, because there is a saving in the act of the rights of
persons beyond sea.
3d. Is payment in this case to be presumed?
The length of time which elapsed between the day when this bond
and mortgage became payable and that on which the suit was
instituted is certainly sufficient to warrant a presumption of
payment. But this presumption may be met by circumstances which
account for the delay in bringing this suit. In this case, the war
and those events which succeeded the war have not the same
influence as in ordinary cases of British debts, because the debtor
was within the reach of his creditor from the date of his
banishment in the year 1778, and might have been sued. It does not
sufficiently appear in the proceedings where he was nor what was
his situation, to enable the court to judge whether the long delay
in bringing this suit is or is not sufficiently accounted for.
Neither is it shown satisfactorily that Alexander Wylly has left no
personal representative who might show payment of this debt. If
there be a personal representative of Alexander Wylly in existence,
such person ought to be a party to this suit; if there be no
personal representative, some evidence that there is none ought to
be adduced. In any event, under all the circumstances of this case,
enough does not appear to enable the Court to decide whether
payment ought to be presumed, or whether the delay in instituting
this suit can be accounted for, and the Court is therefore of
opinion that an issue ought to have been directed by the circuit
court for the purpose of ascertaining the fact of payment. The
decree of the circuit court is therefore to be
Reversed and the cause remanded to that court with
instructions to direct an issue to determine whether the bond in
the bill mentioned has been paid, and with liberty to the plaintiff
to amend his bill and make new parties if he shall desire
LIVINGSTON, J. dissented from this opinion, but did not state