#### *William Wright*vs. *N. R. Eaves.*

To a bill for foreclosure of a mortgage of land, against ono who holds, through intermediate conveyances, under the mortgagor, the statute of limitations is inapplicable— although the defendant and those undor whom ho claims have been in possession more than ten years.

The doctrine of *Thayer*vs. *Cramer,*1 McO Ch. 395, re-affirmed in *Smith*<J- *Guttino*vs. *Osborne,*1 Hill, Ch. 342, may be regarded as the settlod law.

*Before*Johnston, Ch. *at*Chester, *July,*1852.

On November 26,1826, Robert Kennedy mortgaged to Pamela Gunning, a lot of land in the village of Chester, to secure the payment of a money bond ; which mortgage was duly recorded on the second day after its execution.

Robert Kennedy remained in possession of the mortgaged premises until July 13, 1831, when he conveyed the same to John Kennedy. John Kennedy conveyed to G. W. Coleman and wife, with warranty, on November 30, 1836; and they conveyed to the defendant, N. R. Eaves, on January 26, 1846.

At Fall Term, 1841, Pamela Gunning recovered judgment, in the Court of Common Pleas for Chester, against William Woods, administrator of Robert Kennedy, for $1920, balance due on the bond. Payments were made by the administrator which left $785 due on the judgment May 7, 1847, on which day Pamela Gunning assigned the securities for the debt to the plaintiff, William Wright.

*82The administrator, William Woods, was dead; and this bill was filed against N. R. Eaves, who was in possession of the mortgaged premises, for sale and foreclosure.

The defendant pleaded the statute of limitations; and his Honor sustained the plea.

The plaintiff appealed.

6r. *W. Williams,*for appellant,

cited and relied upon *Thayer*vs. *Cramer,*1 McC. Ch. 395; *Nixon*vs. *Bynum,*1 Bail. 148; Act 1791, 5 Stat. 170; *Thayer*vs. *Davidson,*Bail. Eq. 412 ; *Smith*& *Cuttino*vs. *Osborne,*1 Hill, Ch. 342; *Drayton*vs. *Marshall,*Rice Eq. 374.

*Dawkins,*contra

cited *McRaa*vs. *Smith,*2 Bay, 339; *Cho-lett*vs. *Hart,*2 Bay, 156.

The opinion of the Court was delivered by

DuNKiN, Ch.

The bill in this case was for foreclosure of a mortgage of a lot of land in the village of Chester. The defendant is a purchaser from one who held, through intermediate conveyances, from the mortgagor, and the defendant and those under whom he claims have been in possession of the land for more than ten years prior to the institution of these proceedings. He relied on the plea of the statute of limitations. At the circuit the cause was not argued, nor the authorities cited. The plea was sustained.

The mortgage of the complainant was duly recorded prior to the conveyance in fee on the part of the mortgagor. Under these circumstances it was first held, in *Thayer*vs. *Cramer,*1 McC. Ch. 395, that the plea of the statute was inapplicable. Afterwards in *Smith*& *Cuttino*vs. *Osborne,*1 Hill, Ch. 342, that decision was reviewed and the doctrine re-affirmed. Since that time the authority of *Thayer*vs. *Cramer*has been repeatedly recognized, as in *Drayton*vs. *Marshall,*Rice Eq. 374, and may be regarded as the settled law.

As the cause was heard only on the plea, it is proper that the defendant should have the opportunity of availing himself of any other defence to which he may consider himself entitled.

*83It is ordered and decreed, that the decree of the Circuit Court, sustaining the plea of the statute of limitations and dismissing the complainant’s bill, be reformed — that the defendant’s plea be overruled, and that he have leave to answer within thirty-days after notice hereof.

JohNston, Dargan and Wardlaw, CC. concurred.

*Motion granted.*