is no doubt but that the decree of this court upon the foreclosure of the mortgage of Mapes and Oakley, is final and conclusive upon the complainants, not only as to the validity of that mortgage, but as to their right to redeem the lands in question, if they were properly represented in the foreclosure suit.
They were all in being before that mortgage was executed, but neither of them was made a party defendant in the suit; and Clement the eldest child of Thomas B. Clarke, who survived till after the sale under the mortgage, was also omitted in the proceedings for its foreclosure.
It is contended by the defendants, that it was unnecessary to make the children of Thomas B. Clarke who were then in esse, parties to the suit upon Mapes and Oakley’s mortgage, for two reasons. First, because at that time the children had no estate or interest in the lands, either legal or equitable, vested or contingent. They had a mere possibility, to the effect that if they *548should survive their father, they might become entitled to the property in common with all his surviving issue.
Second. If the children had an interest, they were sufficiently representen in the suit by their father, who was their trustee and clothed with the legal title, and who was in effect their special guardian, under the statutes and the orders of this court providing for the disposition of the property.
On the other hand, the complainants insist that the children of Clarke, as they were respectively born, took vested remainders in fee, and were indispensable parties to any suit which sought to cut off their equity of redemption or affect their rights in the mortgaged premises.
Before entering upon the consideration of these vital questions, I will advert to the defendants claim that they were before the Chancellor and were decided by him in the. foreclosure suit and upon the motion to compel Mr. Field to complete his purchase made at the master’s sale. The decree itself certainly furnishes no ground for this claim. Clarke suffered the bill to be taken as confessed, and the decree was taken ex parte against the other defendants, whose solicitor waived notice of hearing. The court did nothing farther than to direct such a decree to be entered as the bill of complaint called for. No legal point or position was presented for its consideration.
The order directing Mr. Field to complete the sale was made upon the master’s report setting forth the sale, and his refusal to complete upon the ground of his being advised by counsel that Clarke was not authorized to mortgage the premises and therefore the title under the decree would not be good. The report also stated Mr. Field’s willingness to complete his purchase upon the court’s decreeing that Clarke had such authority and that the sale would give a good and valid title. The master’s report was submitted to the Chancellor, and the only evidence of his decision, is the order directing Mr. Field to complete the sale.
The question of parties was not brought up by the report, although from the form of the proceeding it is manifest that the report and order were an amicable proceeding. And there is no evidence that this question was presented to the Chancellor, or was thought of by the purchaser or his legal advisers.
*549The report bears date in New York on the 31st of March, and the order thereon was made at Albany on the 4th of April, 1820. It is quite impossible, under all these circumstances, to assume that the Chancellor decided upon that occasion, the question of parties which is now before the court; however desirous the court may be to uphold a title purchased under its decrees.
I. My first inquiry therefore is, what was the estate, interest or right, which the children of Thomas B. Clarke had in the property in controversy, at the time of the foreclosure of Mapes and Oakley’s mortgage ?
Before that period, the legal title had been divested from the trustees named in Mrs. Clarke’s will, and for the present I will assume that it was then vested in Thomas B. Clarke and James A. Hamilton; the latter having an estate for the life of Clarke in trust for him, and Clarke himself having the legal remainder in fee, in trust for his children who should be living at his death, and absolutely for his own benefit if he died leaving no issue living.
In the case of Cochran v. Van Surlay, (20 Wend. 365,) in the Court for the Correction of Errors, the legality of Clarke’s conveyance of certain lands held under the will of Mrs. Clarke and sold under the statutes of the state and the order of the Court of Chancery which form so large a portion of this case, was brought before the former court. In the prevailing opinion delivered by the Chancellor in that case, he says that the children of T. B. Clarke, in existence at the .time those orders were made, had a vested remainder in the estate after his death, subject to open and let in after born children, and liable to be divested by the death of the children during the lifetime of their father. He also said in effect, that the interest of such after born children was a contingent interest until they came into existence.
In my view of the case of Cochran v. Van Surlay, this construction of the will made by the Chancellor, was material to the decision in that cause, and is therefore an authority binding upon me. He said distinctly, that if the rights of any after born children had been presented in that suit, the validity of the acts of the legislature in reference to such rights, would be doubtful. If the rights of the children then in being, were a possibility and *550a mere contingency as is now argued, I do not perceive how the legislature could authorize the lands to be sold so as to bind them or those who upon their death before the possibility became reality, should succeed to the estate ; any more than it could authorize the sale as to the possible rights of children of Clarke who might be born after the passage of the acts. And therefore it seems that in order to uphold the legislation in question, the Chancellor and the court of last resort, must necessarily have determined that the children then in being, had- vested interests which the legislature could direct to be sold for their support and maintenance. When that case was before the Supreme Court, (Clarke v. Van Surlay, 15 Wend. 436,) the now Chief Justice said it was conceded on the argument, that the children took a vested remainder in fee in the land, and in his decision he took that to be a correct exposition of the will.
This strengthens the conclusion that the court of last resort sustained the sale made by Clarke which was then in controversy, on the ground that the right of his children in existence at the time of the sale was a vested remainder.
The Chancellor’s construction in subsequent cases, accords with his opinion in Cochran v. an Snrlay.
Thus, in Nodine v. Greenfield, (9 Paige, 544,) the devise was to the widow for life, and after her death to the children of A. R. who should be living at her death, and the issue of such as should have died ; and in default of such children or issue then living, then over to A. R., and if he were dead, then to the testator’s next of kin. The Chancellor decided that the six children of A. R. living at the testator’s death, took vested remainders in fee, subject to open and let in after born children of A. R., and subject to be divested by death during the lifetime of the widow. And in effect, he decided that the after born children took vested remainders when they were born respectively.
In De Peyster v. Clendining, (8 Paige, 295,) the testator vested the property in trustees, and after giving a life interest to his wife, and similar interests subject thereto to his respective children, directed the capital of the respective shares, upon the death of the children, to go to their issue; and if either of the children died without issue, their shares should go to the sum-
*551vors. In his opinion, the Chancellor says, “ the children of Mrs. H. and of James C. (who were two of the trustee’s children,) who are now in existence have vested remainders in the capital of the shares of their parents, subject to open and let in after born children; and subject also to be wholly divested by an entire failure of issue at the death of their parents respectively.”
In Moore v. Lyons, (25 Wend. 119, 144;) the devise was to Mary for life, and from and after her death to her three daughters, or to the survivors or survivor of them, their or her heirs and assigns forever. The Chancellor in commenting upon it, remarks, that where a remainder is so limited as to take effect in possession, if ever, immediately on the determination of a particular estate, which is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is in esse and ascertained ; provided nothing but his own death before the determination of the particular estate, -will prevent such remainder from vesting in possession : yet if the estate is limited over to another, in the event of such death before the particular estate determines, his vested estate is subject to be divested by that event, and the interest of the substituted remainderman, which was before either an executory devise or a contingent remainder, will if he is in esse and ascertained, be immediately changed into a vested remainder.
This language, although not absolutely necessary to the decision of Moore v. Lyons, describes precisely the estate of Clarke’s children at the period of the foreclosure of Mapes and Oakley’s mortgage. Bayard Clarke, for instance, then had a remainder, which would take effect in possession if ever, at his father’s death, an event certain to occur by the efflux of time ; and nothing but his own death before his father’s, would prevent his remainder from vesting in possession. Yet that contingency would divest his estate or interest, and it would then vest in his surviving brothers and sisters.
The authority of the Chancellor as thus exhibited in the cases which 1 have cited, must control in this branch of the court, unless the court of last resort has decided differently. That court, it is said has so decided in the cases growing out of the will of *552Medcef Eden. (Jackson v. Waldron, 13 Wend. 178, affirming the Supreme Court in Pelletreau v. Jackson, 11 ibid. 110.)
The decision in Jackson v. Waldron, even if the Eden will were synonymous in its terms with that of Mrs. Clarke, is met by that of the same court in Cochran v. Van Surlay, if I am right in my observations upon the latter.
But the devise in the two wills is very different. Eden’s will vested a qualified or determinable fee in the first taker, (Waldron v. Gianini, 6 Hill, 601,) and the gift over, was an executory devise. Mrs. Clarke’s will gave a life estate to the first taker, with a direct remainder in fee to his children living at his death. The latter as they came in esse, became invested with a qualified fee in remainder, like that given in possession to the two sons of Eden. It would not come into their possession till Clarke’s death, and was defeasible by their own prior deaths respectively. On the latter event, the executory devise in Mrs. Clarke’s will, arose in favor of the substituted remaindermen.
With this brief remark, to point out in part, the difference between the two devisees, I will next attempt to show that the Chancellor’s construction of the devise to the children of Clarke is the true one; and that if I err in supposing his opinion ought to control my decision, yet the law and his opinion correspond.
The circumstance that the legal title is given to trustees, makes no difference in the construction, and need not be again mentioned on this point.
A vested remainder, is one by which a present interest passes to the party, though to be enjoyed in future, and by which the estate is fixed to remain to a determinate person after the particular estate is spent. He has an immediate fixed right of future enjoyment.
A remainder is contingent, when it is limited to take effect on an event which may never happen, or which may not happen till after the preceding particular estate ends, or is limited to a person not in being or not ascertained. Now in this case, the event was certain, for T. B. Clarke was certain to die. The person was determinate, as soon as a child was born to him. (See Doe v. Perry, 3 T. R. 484.) The interest in remainder was doubtless contingent as to the children, before it was known that Clarke *553would have issue. The unborn children had a right by way of springing use, and it was until their birth, a possibility only. But whenever a child is born to whom a remainder has been previously limited, such remainder then vests in the child, if he be certain to take it by the terms of the gift. Each child of Clarke , was certain to take, unless his estate should be afterwards divested by his death in Clarke’s lifetime. In respect of that liability to have the estate defeated, this remainder after the birth of a child, in no respect differs from the instances so common in the English conveyances and devises, of an estate given to A. for life; remainder to B. for life, remainder to C. for life, and then to D. in fee. It has never been doubted but that such remainders to B. and C. are vested.
Yet it is obvious, that the death of either B. or C. in the lifetime of A., will prevent the limitation in his favor from ever taking effect in possession.
It is the present capacity of taking effect in possession, if the possession were to become vacant, not the certainty that it ever will become vacant while the remainder continues, which distinguishes a vested from a contingent remainder. In other words, in the former the enjoyment is uncertain, in the latter the right to that enjoyment.
Thus in this case, in 1820 there was no certainty that Bayard Clarke would survive his father, and his remainder might therefore cease before the possession became vacant. This was no test of its character. But at that very time, if the possession had become vacant by the death of T. B. Clarke, Bayard C.’s remainder had a present capacity to take immediate effect.
Wherever the preceding estate is limited so as to determine on an event which must certainly happen, and the remainder is so limited to a person in esse and ascertained, that the preceding estate may by any means, determine before the expiration of the estate limited in remainder; such remainder is vested. And it is only where the event which is to be the termination of the preceding estate is such as may never happen, or the remainderman is not in esse, or not ascertained, or by its limitation some dubious event, other than the determination of the preceding estate, *554is required to give it a capacity to take effect; that the remainder is contingent. (2 Cruise, 271.)
It is not material to the remainder’s vesting, that Clarke’s children might not survive him. To prevent its vesting, the event must be one which will not certainly happen before the termination of the particular estate, and yet must arise before the remainder takes effect. There is no such event in this limitation.
Mr. Preston says, when a remainder is limited to a person in esse, and ascertained, to take effect by words of express limitation on the determination of the preceding particular estate, this remainder is most clearly and unquestionably vested.
A gift by remainder to a person, with superadded words of contingency, and with a limitation over on that contingency, will be vested and not contingent.
I derive these propositions from 2 Cruise’s Dig. 260, 270, 271, -Title, Remainder, chap. 1; and 1 Preston on Estates, 64, 67, 70, 73, 74.
It is scarcely possible to reconcile all the decisions that have been made on this subtle and perplexing subject.
But the current of authority in favor of holding the remainder in question to have been vested in the issue of T. B. Clarke as they respectively came in esse, is clear, strong and uniform. I will cite a few of the cases bearing upon the point.
In Boraston's Case, (3 Rep. 19,) the devise was to two persons for eight years, remainder to the executors until such time as Hugh B. should accomplish his full age of twenty-one years, and when he should come to his age of twenty-one years, then the testator willed that Hugh should enjoy it to him and his heirs forever. Hugh B. died under twenty-one ; and it was contended that the remainder to him was contingent on that event. But it was adjudged to be a vested remainder, to take effect in possession at the time when he would be twenty-one.
In Parkhurst v. Smith, Lessee of Dormer, Willes Rep. 327 ; (S. C. 4 Bro. P. C. 405; 3 Atk. 135 ;) the limitation was to A. for ninety-nine years, if he so long lived, and after his death or the sooner determination of that estate, then to trustees during A.’s *555Bife to preserve contingent remainders, and then to A.’s first son in tail male. The question was upon the legal estate in the trustees, and it was insisted that the remainder to them if not void for repugnancy, was at least contingent, because it could not arise upon any event other than A.’s surrender or forfeiture, neither of which was certain to happen. It was held by the King’s Bench, and by the House of Lords on a writ of error, that the trustees took a vested legal remainder in the estate.
Lord Chief Justice Willes in delivering the unanimous opinion of the Judges in the House of Lords, declared that there were but two sorts of contingent remainders which do not vest; 1st. Where the person to whom the remainder is limited is not in esse at the time of the limitation. 2. Where the commencement of the remainder depends upon some matter collateral to the determination of the particular estate.
I may observe that the first sort mentioned by the Chief Justice, are no longer contingent after the remaindermen come in esse, and are ascertained. The remainder to T. B. Clarke’s children therefore falls within neither class of contingent remainders as thus defined. The persons were ascertained, and it was to commence in possession on the determination of the particular estate, and upon no other matter or event.
Our Supreme Court, in Doe v. Provoost, (4 Johns. 61,) held that a devise to a daughter for life, and immediately after her death, to such children as she should have lawfully begotten at the time of her death, conferred a vested remainder in fee on the children who were living at the testator’s death, subject to open for the benefit of children of the daughter who should be born subsequently.
Our courts thus followed the law as settled in England previous to the revolution.
Bromfield v. Crowder, (1 Bos. & P. New Rep. 313,) is a leading case in England, on this subject, after the decisions there ceased to be controlling. It was twice argued, and on each occasion most ably, and by counsel of the highest eminence. It came from the Rolls for the opinion of the Common Pleas. The testator devised his real estate to his wife for life, and then to J. Rose *556for life in case he survived her, and at the decease of both or the longest liver of them, he gave all his estate to his godson John D. Bromfield, if John should live to attain the age of twenty-one years, but in case he died before he attained that age, and his brother Charles B. should survive him, then he gave the estate to Charles if he lived to attain twenty-one and not otherwise; and in case both died under twenty-one, then he gave the estate to John Tale in fee.
The widow and J. Rose died while John D. B. was under the age of twenty-one years, who thereupon claimed the estates. The heir at law on the other hand insisted that the remainders to John and those subsequent, were contingent, and because of the determination of the particular estates before the contingency happened, the remainders could never take effect.
The court certified unanimously that John D. Bromfield took a vested estate in fee simple, determinable upon the contingency of his dying under the age of twenty-one years.
The Master of the Rolls thereupon decreed accordingly, and his decree was affirmed by the Chancellor, and on appeal to the House of Lords, the question was argued there and the decision sustained. See this stated in 5 Dow’s P. C. 207, 215, and in 14 East, 603, where it is erroneously mentioned as having gone to the House of Lords on a writ of error.
In Doe, ex dem. Hunt, v. Moore, (14 East, 601,) the devise was to John M. “when he attains the age of twenty-one years” but in case he should die before he attained that age, then to his brother James when he attained the age of twenty-one, with a like limitation over. John M. was under twenty-one when the testator died. It was decided that he took an immediate vested estate, which was liable to be divested upon his dying under twenty-one years of age.
In the next case which I shall cite, the limitation to the children was in favor of such as should live to be twenty-one. The contingency was therefore precisely similar in its uncertainty to that in Mary Clarke’s will, and in both instances the children were all born after the death of the testatrix.
Sarah Trymmer, being seised in fee, devised her lands to John *557Roake (her nephew and heir,) for life. The devise over was as follows : “And on the decease of my said nephew, John Roake,
I devise all my said estates to and among his children lawfully begotten, equally, at the age of twenty-one, and their heirs as tenants in common, but if only one child shall live to attain such age, to him or her, and his or her heirs, at his or her age of twenty-one. And in case my said nephew John Roake shall die without lawful issue, or such lawful issue shall die before twenty-one, then I devise all the said estates to and among my nephews and nieces, Miles, Thomas, John, James, and Sarah Pinfold, and Susannah Longman, or such of them as shall be then living, and their heirs and assigns for ever.”
At the death of the testatrix, John Roake was a widower, without issue. He afterwards married and had four children, who were lessors of the plaintiff. After the birth of two of the children, he levied a fine of the lands in his own favor, in fee. The defendant held under the fine. The four children survived John Roake and two of them had attained the age of twenty-one years, and two had not, when the suit was commenced. The question was, whether the children took vested interests before they became of full age.
The case came before the King’s Bench in 1813, in Doe, ex dem. Roake, v. Nowell, (1 M. & S. 327,) and was elaborately argued by Mr. Preston, against the children of John Roake. The court held that the children took vested remainders. In 1817, a case upon the same devise was removed to the House of Lords, and after a very full argument by distinguished counsel, the decision of the King’s Bench was affirmed. (Randall v. Doe, ex dem. Roake, 5 Dow’s P. C. 202.)
Machin v. Reynolds, (3 Brod. & B. 121,) was a case sent by the Vice-Chancellor for the opinion of the Common Pleas. The testator devised his real estate to his sister and his nephew for their joint lives, and to,the survivor for life if the one deceased left no issue; and one-half to the survivor for life, if the one deceased left issue, the income of the other half to be paid to such issue during their minority. And when and as the children of the sister and nephew respectively, (if any there were,) should attain their age of twenty-one years, then the whole was *558given equally to and among all such children in fee. And in case the sister and nephew should both happen to die without leaving issue, or there being such they should happen to die under the age of twenty-one years and without issue, then the estate was given to one Moseley in fee. At the death of the testator, the nephew had a daughter, who then was and still remained his only child. The sister was never married. Both sister and nephew were living at the time of the decision.
The court held that the nephew’s daughter, upon the death of the testator, took an estate in fee, in remainder during the lives of the cestui que vies, subject to be divested in part, by the birth of other children of the nephew and sister or of either of them, and determinable altogether in the event of her dying in the lifetime of the nephew, or under the age of twenty-one, without leaving issue.
In Farmer v. Francis, (9 Moore, 310 ; S. C. 2 Bing. 151,) on a case sent by the Vice-Chancellor, the testator gave all his residuary estate in trust, for the use of his wife during her life, and from and after her decease for the use of his daughter Mary Frances for her life, and from and after the death of both the wife and daughter, or the survivor of them, (still in trust) to and among all and every the child or children of Mary Frances as should be living at the death of such survivor, equally, if more than one, ' to be divided share and share alike, when and as they should respectively attain the 'age of twenty-four years, and to their respective heirs, &c. forever, to take as tenants in common ; and if only one, then the whole to such child upon attaining that age. But in case of no issue of Mary F. living at the death of such survivor, or being such they should all die without issue under twenty-four, then upon trust for two grandsons of the testator.
The testator died in 1814, the widow in 1818, and Mary Frances in November, 1821. At her death she left seven children, the youngest of whom was born in 1817. The court decided (in 1824,) that the seven children took equitable estates in fee as tenants in common.
In that case, besides the qualification that they should be living at the death of the second tenant for life, there was the fur*559ther limitation that they should attain the age of twenty-four years.. Yet it was held a vested estate in the children living at the testator’s death, and which opened and let in the after bom children, (the latter on their birth taking a vested interest,) and that too without reference to their being under the age of twenty-four years.
The case called for no opinion as to the determination of their estate upon their dying under twenty-four without issue.
The case of Warter v. Hutchinson, was sent by the Vice-Chancellor to the Common Pleas; and afterwards to the King’s Bench in 1823. (2 Br. & B. 349 ; S. C. 5 Moore, 143 ; 1 B. & C. 721; S. C. 3D. & R. 58.) It arose upon a devise to trustees of a complex character, but in effect it was for J. W. for life when he arrived at twenty-one, with remainder in tail to his children, but if he died under twenty-one, then for H. W. for life, when he attained twenty-one, with remainder in tail to his children. J. W. survived the testator, but died under twenty-one leaving a daughter. H. W. became twenty-one. The decision in both courts was that J. W. at the death of the testator took a vested estate for life, and on his own death, his daughter took an estate in tail; and that H. W. at the testator’s death took a vested estate for life in remainder expectant on the death of J. W. and failure of his issue.
In Doe, d. Bills, v. Hopkins, (5 Queen’s Bench R. 224, and 8 Lond. Jurist R. 142, Mich. T. 1843,) the testatrix devised real estates to her grandsons, T. and W., in equal moieties during their lives, and after their decease she gave T.’s moiety “ to such child or children as he should happen to leave lawful issue at time of his decease, and to their, her or his heirs and assigns for ever, to take in equal shares if more than one.” She gave W.’s moiety in like manner to his children. She then, if either T. or, W., or both, should die without lawful issue, substituted J. another grandson, in all respects for the moiety of the one or both so dying, and with similar limitations to J. and his children. And if all three died without lawful issue, or if leavin'g issue such issue should die under twenty-one without issue, then the estate was to go to the sisters of the testatrix in fee; T. and W. *560survived the testatrix who died in 1816. At her death T. had a daughter who died in 1821. In 1818, E. another daughter of T. was born, who was a lessor of the plaintiff. In 1827, T. and W. suffered a common recovery with double voucher, and in 1828 T. died.
It was held that the remainder to the children of T. vested in them, and on the birth of E. she took a vested estate which was liable only to open and let in after born children of T., and which was not barred by the recovery.
The cases of Duffield v. Duffield, (3 Bligh’s R., N. S. 260,) and Phipps v. Acker, (3 Clark & Fin. 665, 702,) in the House of Lords, are sometimes referred to as conflicting with the previous authorities ; but as I think without good reason.
In the former, one of the devises was to the son of A. who should first attain the age of twenty-one years, and should on attaining that age, take the testator's name. It was therefore in every sense contingent. There was no person in esse who certainly answered the description; and if any. one were described, he might refuse to change his name.
It is true that some of the reasoning of the judge who delivered the advisory opinion to the house, is adverse to the decision in Bromfield v. Crowder, and Randoll v. Doe; and he relies upon the nice distinctions upon the use of the adverbs of time, “ when” and “ iff and “ atf which though introduced from the civil law courts into the law of legacies, do not apply to real estate, as is shown by the .case of Bromfield v. Crowder, and cotemporary decisions.
The same observation may be made respecting the judgment of the Court of Exchequer in Festing v. Allen, (12 Meeson & Welsby, 279,) which was decided at the same term with Doe, d. Bills, v. Hopkins, and is not entirely harmonious with the decisions from Boraston's Case downwards.
The other case said to be conflicting, is Phipps v. Acker, and Acker v. Phipps. There the devise, was to trustees, in trust to convey the testator’s lands in W. to G. H. A. when and so soon as he should attain twenty-one, but in case of his dying under that age and without issue, then over to a residuary devisee ; and in trust to convey the residue of the testator’s lands to J. C *561A. when he should attain the age of twenty-four, upon his giving security for certain legacies, &c., but in case J. C. A. died before he became twenty-four, without issue then over. G. H. A. and J. C. A. were both infants at the testator’s death. The Vice-Chancellor, (Phipps v. Williams, 5 Simons, 44,) decided that G. H. A. took a vested estate, but that J. C. A.’s interest was contingent on account of the condition attached that he should give securities, &c., on attaining the prescribed age.
In the House of Lords, the opinion of the court was delivered by Lord Brougham; and although he finds fault with the decision of Lord Ellenborough in Doe v. Moore, and criticises some of the kindred cases, yet he concluded that J. C. A. took a vested interest in the interim rents, &c.; and the House reversed that part of the Vice-Chancellor’s decree. In regard to the interest of G. H. A., the appeal was never decided..
These recent cases do not impair the great strength of the au- ■ thorities to which I have referred in support of the position that the children took a vested remainder under the will of Mrs. Clarke. Indeed, the latest case in the House of Lords, Acker v. Phipps, as well as that oí Doe v. Hopkins, which is the last reported in the Queen’s Bench, fully sustains those authorities.
I refer also to the following as agreeing in substance, with those which I have stated. Doe v. Martin, (4 T. R. 39;) Stanleys. Stanley, (16 Ves. 491;) Osbrey v. Bury, (1 Ball & B. 53;) Driver, d. Frank, v. Driver, (6 Price, 41,) in the Exchequer Chamber; Carver s. Jackson, ex dem. Astor, (4 Peters, 1, 90;) and 1 Rev. Stat. 723, § 13, where the distinction adopted between vested and contingent future estates, brings the remainder in question within the class of vested estates.
Some of these cases cannot be distinguished from the one under consideration, and the elder decisions are authority; while the later ones are adjudications entitled to the highest respect, as showing what was the common law on this subject.
They are in accordance with the maxim of the law that these limitations shall be construed as vested interests, whenever they can be so taken without doing violence to the expressed intention of the grantor or testator.
And the result of the decisions appears to be, that where the *562limitation is to take effect on an event certain to occur, and the person to whom it is limited is ascertained, it shall be deemed a vested remainder; and any provision or contingency which may prevent its ever coming into possession, or may entirely cut it off, is considered a condition subsequent.
The direction that the trustees are to convey the property to the issue of Clarke living at his death, in no manner affects the point. The issue would be deemed in equity as having the whole interest after the death of Clarke, without any regard to a conveyance of the legal title. And the objects of the trust having been accomplished, the estate would now be held a legal estate in those entitled under the will. (1 R. S. 727, § 47,48; ibid. 730, § 61. In the Matter of De Kay, 4 Paige, 403. And see Eckford v. De Kay, 8 Paige, 89, 94, and 26 Wend. 29 on appeal.)(a)
My conclusion is that the children of T. B. Clarke, who were living at the commencement of Mapes and Oakley’s foreclosure, had at that time, a vested equitable remainder in fee simple in the lands mortgaged. It was to take effect on the death of their father, was liable to be divested as to either child by his or her death before that event, and was subject to open to let in after born children of Clarke.
II. Were the children of Clarke then in being, necessary parties to the foreclosure of the mortgage; and were their rights barred or affected by the decree in favor of Mapes and Oakley?
The general doctrine is that all persons whose interests are to be concluded or affected by the decree, ought to be made parties.
This applies to mortgage cases; and all persons having an interest in the equity of redemption, should be made parties to a bill of foreclosure, and a fortiori to a bill for a sale of the property mortgaged. (Story’s Eq. PI. § 193. 4 Kent’s Comm. 185, 186, 2d ed.)
Chancellor Kent says, that the general rule includes the heir or devisee, the tenants for life, and the remainderman. He adds,
*563" The question of parties is usually more or less fluctuating and open for discussion. It is governed, in some degree, by circum stances; whereas, the principle that those persons who are interested in the subject, and are not made parties to the suit, are not bound by the decree, is more steady in its operation, for it is founded on natural right.”
The defendants contend however that this case is an exception to the general rule. That the circumstance that the trustee was a party, and represented the legal estate as well as the ultimate remainder, was sufficient to bring the rights of the children before the court, and enable it to dispose of the whole subject intelligibly. And this was especially the case, it is said, because the infants were quasi wards of court by reason of the acts of the legislature and the orders of the court thereupon; and the master in chancery, who under those orders was bound to protect their interests, was also a party to the foreclosure.
It is conceded to be the general rule, that if the equity of redemption is vested in a trustee in trust, the cestuis que trust must be made parties to the foreclosure. All the books agree in this-(Story’s Eq. PI. § 193, 197,. 207. Calvert on Parties, 181, 182. Gore v. Stackpoole, 1 Dow’s P. C. 18, 31, per Lord Eldon.)
The only established exception, is in cases of remote limitations of the equity of redemption; in which, on account of the impossibility of bringing in parties not in esse or not ascertained, but who ultimately may become entitled, it is held sufficient to bring before the court the persons in esse who have the first estate of inheritance, together with the persons having all the precedent estates and prior interests.
In this case no person was made a party who had a vested estate of inheritance, or who had the first estate of inheritance in the mortgaged premises. I speak now of the substance, not forgetting that the trustee had the nalced legal title.
The case of Nodine v. Greenfield, before cited, (7 Paige, 544,) shows the rule where there are successive estates in the equity of redemption; but in that case there was no trust. The Eagle Fire Insurance Company v. Cammet, (2 Edw. Ch. R. 127,) was a similar ease. •
In Calverley v. Phelp, (6 Madd. 229,) the general rule was en-
*564forced in a case falling far short of this in the necessity of its'application. The equity of redemption had been conveyed to trustees to sell and divide the surplus among persons specified, and the receipt of the trustees was to discharge the purchasers. It was held that the cestuis que trust were necessary parties to a bill brought to foreclose the mortgage. (And see Holland v. Baker, 3 Hare’s Ch. R. 68; Barkley v. Lord Reay, 2 ibid. 306; Wilton v. Jones, 2 Y. & C. Chy. Cases, 244.) (a)
In Yates v. Hambly, 2 Atk. 238, (cited by the defendants,) on a bill to redeem, which presents an analogous case, Lord Hardwicke required the first tenant in tail at least to be brought in; and his language shows he would have required it if the conveyance had been in trust with a plain limitation.
In short, the general rule required that these children of T. B. Clarke should be made parties. No authority has been found which dispenses with the necessity of bringing the beneficiaries before the court under such circumstances. Common sense and common right required it. And in no conceivable case, could it be more important to the ends of justice, than in the one before me, where those intrusted with the care of this property, had exhibited so much looseness, if not recklessness, in regard to the interests of the owners of the inheritance.
The cases and treatises cited in support of the omission of the children, do not come up to the point.
The doctrine of representation stated in Mr. Calvert’s Treatise, (p. 19, 20.) has no application; as may be seen by referring to what he says of trustees and cestuis que trust. (Calvert, 207, &c.)
Nor are the extreme cases any guide, in which from the multitude of parties in interest, the courts have hesitatingly and in a *565few instances, suffered some of the parties, having the same degree or extent of interest, to prosecute or defend for the whole.
Suits for administration, form a distinct class, in which legatees, creditors, &c., come in after decree, and participate in its fruits. Drew v. Harman, (5 Price, 319,) was suffered to go off on that principle, although a questionable application of it.
It is true that in our practice, we permit a party who assails a deed of trust on the ground of fraud, to proceed against the trustee alone; yet it is not permitted where the complainant is endeavoring to enforce a claim adverse to the interests of the cestuis que trust, but which is founded upon the assumed validity of the deed. (Rogers v. Rogers, 3 Paige, 379.)
I do not perceive that the complainants rights could be any more affected by a decree of the Court of Chancery to which they . were not parties, because the court had previously interfered with their property in obedience to the special acts of the legislature ; or because a master of the court, who acted in that behalf under the orders stated in the pleadings, happened to be vested with T. B. Clarke’s life estate, and was for that cause made a defendant in the foreclosure suit.
Nor does it aid the defendant’s case, that T. B. Clarke was the natural guardian of these children, or that he was in effect their special guardian for the management of the estate. Their case is presented in all its strength, by the fact that he was their trustee and vested with the whole legal title ; and this as I have shown, does not suffice.
It is said also that Mr. Field was a purchaser in good faith under the decree, without notice, and the court having compelled him to take the purchase, ought to protect him.
Assuming that he was such a purchaser, it does not affect the question. A decree had been made, which was a nullity as to the complainants. The court, knowing nothing of this, and Mr. Field’s counsel having failed to discover it and present it to the consideration of the court, made an order to complete the sale. Such order was indeed a matter of course upon the case presented by the master’s report, under the Chancellor’s view of the authority of T. B. Clarke. If the court guaranteed the titles made under its sales, or undertook to the public that none but good *566titles should be sold under its decrees, the argument would have force. But the court holds out no such inducements to purchasers. At most, it will refrain from compelling a bidder to-take a defective ti le, on his pointing out the defect or impediment.
It becomes my duty to hold that the rights of the complainants were not foreclosed or affected by the decree in favor of Mapes and Oakley.
III. The validity of the mortgage is the next point in the cause.
The complainants insist that it is invalid and entirely void because, 1. the acts of the legislature on which it was based were unconstitutional, 2. the orders of the Court of Chancery were not in conformity with the acts, and 3. the mortgage was not in pursuance of the orders of the court.
The first of these objections has been overruled in our court of last resort, and my conclusion upon the others relieves me in a great measure from the painful responsibility of examining them at large.
When Mr. Field refused to complete his purchase, Chancellor Kent decided distinctly, that T. B. Clarke was authorized to mortgage the premises in question, for the debt and under the circumstances set forth in Mapes and Oakley’s bill. Although this decision is not conclusive upon the complainants, it is binding upon me as the judgment of the then head of the court, and no less as the judicial opinion of one of the purest and ablest chancellors that ever administered the principles of equity.
The bill of Mapes and Oakley states that they were merchant tailors, and that T. B. Clarke became indebted to them in $1000 for wearing apparel furnished by them to and for Clarke and his children from the 15th of January, 1815, to October 16th, 1818, which is the date of the mortgage; and that the mortgage was given to secure its payment.
So far as the facts proved in this suit sustain that statement, 1 must hold the mortgage to be valid under Chancellor Kent’s decision, without any examination of the soundness of his conclusion. As to the other consideration proved, it will depend upon its own merits, unless it be within the principle of that decision.
*567At the date of the mortgage, as I construe the testimony, Clarke owed to Oakley, on an account commencing January 20, 1815, $171; and $150 25, besides interest, on a note given January 10, 1815, for a previous account, running from May, 1813. And he then owed to Mapes and Oakley a balance of book account of $273 77. All these accounts were for wearing apparel for Clarke and his children, although but a small proportion was for the latter. As to the orders for clothing drawn by him in favor of third persons,
I will not after this lapse of time, say that they were not given for necessaries obtained for himself and his family. Nor can I perceive any reason why Chancellor Kent’s principle does not cover the debt incurred in 1813 and 1814, as well as that in the subsequent years.
These items amount to $595 02, and with the interest on the note after six months, make an aggregate of about $630 for which the mortgage is to be deemed clearly valid.
For the remaining consideration, Mapes and Oakley gave to Clarke on the 19th May, 1819, their note for $158, and in the meantime they had furnished to him clothing amounting to $158 50. There was moreover an account against Clarke, co-temporary with the prior tailor’s bills, for cash lent to him in trifling sums; and this account doubtless made up the balance of the $1000.
I will consider Chancellor Kent’s decision as extending to the cash thus advanced. But it does not cover the note or the clothing delivered after the mortgage was executed.
As to the latter, it is plain that the orders of the court did not confer upon Clarke an authority to mortgage his children’s lands for clothing thereafter to be furnished either to him or them.
Then as to the note, (and in considering it I do not go back of the orders made under the acts of the legislature,) the most favorable view of the transaction is that at the time of giving the mortgage, Mapes and Oakley verbally agreed to advance in cash whatever balance there might be of the $1000, after deducting their old note and book debts; and that seven months afterwards, they gave their note for such balance. I cannot presume that the verbal agreement was for any definite sum in cash, because the balance was only obtained subsequently by deducting the *568account which accrued after the date of the mortgage. The note was paid by Mapes and Oakley, and it may be assumed that they were sufficiently responsible to make good their promise.
The order of May 30th, 1816, giving its terms the full import claimed for them, authorizes Clarke to mortgage the property therein referred to, for securing the sum or sums of money to be advanced or lent to him or for his use, by the mortgagee or mortgagees.
A promise to advance money at a future period, is not money lent or advanced. And as this was a power of a very extraordinary character, if not in derogation of common right, no court can extend it by construction. (See Bloom v. Burdick, 1 Hill, 140; 6 ibid. 415, Rogers v. Dill.)
The mortgage was therefore beyond the authority conferred, in respect of this note. The subsequent giving of the note and its payment at maturity, did not make good by relation, what was invalid in its inception and execution.
Upon the whole, the mortgage is to be deemed valid for f683 50, at the time it was executed.
The defendants have succeeded to the rights of Mr. Kennedy under the mortgage which Clarke executed to him. This mortgage is also alleged to be invalid. The testimony in regard to it is not full or satisfactory, and as it is not indispensably necessary to decide upon it in this stage of the cause, it will be more conducive to a just conclusion, to leave its entire or partial validity for determination on the reference which will follow a decree for redemption on the other mortgage. The parties can thus produce further testimony on the subject.
IV. The defendants in the last place, contend that Mrs. Williamson and Mrs. Cochran are barred by the limitation of ten years prescribed in the revised statutes for the commencement of suits in equity.
Mr. Field obtain possession of the premises in March or April, 1827, which was after the death of the tenant for life.
At that time all the children were under age, but Mrs. Williamson’s minority terminated in 1828, and Mrs. Cochran’s in 1830. The disability arising from marriage was, in the case of *569each, subsequent to the accruing of their perfect right to redeem, and cannot be tacked to that founded upon their infancy.
As the law was in April, 1827, each of these parties had twenty years in which they were entitled to redeem. (Moore v. Cable, 3 J. C. R. 385; Burke v. Lynch, 2 Ball & B. 426.) So that when the revised statutes went into, effect, each was entitled to tabout seventeen years for that purpose.
It is claimed that the revised statutes cut off seven years of this period, and if they did, these two complainants were barred before the commencement of their suit.
I do not find that it has ever been decided, that the fifty-second section of the sixth article of the title of the revised statutes relative to the time of commencing actions, (which introduced a law entirely new,) is applicable to cases where the right of action existed before they took effect.
It has been decided in some cases, that statutes of limitation affect the remedy and not the right. But the grounds of this conclusion do not appear sufficiently forcible to me, to warrant a court in construing such a statute in a manner which will in effect defeat a vested right by an abrupt termination of every remedy for it, unless the language of the statute itself imperatively requires that construction, If the section in question .is to be applied to all prior equitable rights, a party who on the last day of December, 1829, had ten years in which to bring his suit, might on the next day find himself barred by lapse of time. Or if in December, 1829, he had only nine years left in which to redeem his estate from a mortgage", he would on the first day of the new year, be barred of his right, and his estate be gone.
I know it is said, that the construction of the statute must be such as to give the full ten years from January 1, 1830, or at all events to give that period in all cases where there remained ten years under the old law, This is argued upon the impossibility of attributing to the legislature, such an outrage upon all right, as to cut off a remedy suddenly and absolutely, by an act of limitation.,
But the statute itself says nothing of ten years, or of any other term, from the time it. goes into effect. Its language is plain and positive, “ within ten years after the cause thereof shall accrue, *570and not after.” It is equally plain that the right in this case had accrued in 1827, and by the clear terms of the law, if applicable to it, was barred in 1837.
In order to construe the statute in the mode suggested, we must add to the section “ or within ten years after this article takes effect.” No construction, it seems to .me, can put that idea into the section as it now stands. And it is certainly as reasonable and, just, to presume that’ the legislature did not intend to affect, impair or diminish, existing rights at all; as it is to engraft an addition upon the section in the statute in order to save it from absurdity ; or force it by the construction which I have just mentioned. But I think the language of the article itself precludes both the addition and the construction which is thus claimed. The limit is not as in section eighteenth relative to actions at law, “ after the cause of such action accrued.” It is “ within ten years after the cause thereof shall accrue.” The statute speaks from the time it took effect, and it thus applied to cases which should accrue after that time, and not to those which had already accrued.
I submit also that upon sound rules of construction as well as of justice and morality, it may be shown that this section of the article did not apply to existing rights of action.
It does not in express terms, affect such rights. On the corn trary, its terms look to the future. In connection with the 49th section respecting concurrent jurisdiction in law and equity, and the 45th section which was inserted for greater caution and expressly excludes the provisions of the first four articles from affecting rights of action which had then accrued; the 52d section admits of a construction which refers it to future rights alone. (2 R. S. 300, 301.)
The revisers note to section 45th shows that they did not design to give to any part of that title, a retroactive effect. (3 R. S. 704, 2d ed.)
The general rule is that no statute is to have a retrospect beyond the time of its commencement; nova constitutio futuris formam debet imponere, non prceterilis. (Bac. Abridg. Statute, C.; Dwarris on Stat. 680; 1 Kent’s Comm. 455, 2d ed.) And in his masterly judgment in Dash v. Van Kleeck, (7 Johns. *571R. 477, 500,) the learned commentator shows that this is a principle of universal jurisprudence.
In the case just cited, the defendant relied upon an act passed, pending the suit, which declared the construction of a previous statute, and if applied to previous cases, in effect, exonerated parties from the consequences of a different construction which it had received in the Supreme Court. It was decided by that court, that the act relied upon, did not operate retrospectively, or affect the suit. Although Judge Spencer delivered a strong dissenting opinion, I believe the arguments of Chief Justice Kent and Judge Thompson on the other hand, have always commanded the assent of the bar, and of jurists, wherever the report of the case has been read.(a)
In Sayre v. Wisner, (8 Wend. 661,) the point was presented in a case arising under the revised statutes as to dower. By 1 Rev. Stat. 742, § 18, it is enacted that a widowshall demand her dower within twenty years after the death of her husband. The husband in that case had been dead more than twenty years before the revised statutes. The provision was new, and abridged the previous term allowed for the widow’s entry, and if it were applied to the case, it cut off the plaintiff’s remedy. The Supreme Court held it to be a statute of limitation, but that it did not operate retroactively, and did not therefore affect the claim. Chief Justice Savage said, no statute, as a general ruléis to have a retrospect beyond the term of its commencement. And, “ a statute never ought to have such a construction as to divest a right previously acquired, if it be susceptible of any other; giving it a reasonable object and full operation within such construction.”
The saving clause referred to in that case, (1 R. S. 750, § 11,) speaks of vested estates, interests or rights. It of course had no *572bearing, if as is contended, a statute of limitation affects the remedy only.
In The People v. The Supervisors of Columbia County, (10 Wend. 362,) which arose under the general statute of limitations in the revised statutes, Chief Justice Savage says, “ those statutes, like all others, are prospective, and so are to be construed, unless otherwise expressed; or unless they cannot have the intended operation, by any other than a retrospective construction.”
The same doctrine precisely, though in reference to another part of the statutes, is laid down by the Supreme Court in Hackley v. Sprague, (10 Wend. 113.)
And in Johnson v. Burrell, (2 Hill, 238,) Judge Cowen of the same court, when speaking of the construction of a statute, says, “ It is a general rule that a statute affecting rights and liabilities should not be so construed as to act upon those already existing. To give it that effect, the statute should in terms declare an intention so to act.”
In Cruger v. Hamilton, (January, 1841,) my learned predecessor declared his opinion that the 52d section of the statute of limitations, did not apply to causes of action which had accrued before it went into operation.
With these lights for my guidance, and with a deep sense of the sound propriety of the principle which governed them, I am confident that I shall best promote the true intent of the provision of the revised statutes under consideration, by construing it to have no application to the complainants rights which were vested and perfect before those statutes took effect.
The complainants insisted that if any of the provisions of the sixth article were applicable to the case, they were still in time under the 49th section, because they had a remedy at law by ejectment, and the jurisdiction being thus concurrent, they are not barred short of the 20 years allowed for bringing ejectment.
This ground was taken on the assumption that the mortgage was wholly void ; yet that the complainants might waive that position.
The mortgage being valid in part, it is an interesting inquiry, whether the complainants could bring ejectment; and if so, whether the remedy for redemption in equity is a concurrent *573jurisdiction within the 49th section. The former depends upon the legality of Mr. Field’s possession as against the remainder-men who were not affected by the decree under which he purchased ; the possession having been rightfully acquired in respect of the tenant for life. (See Van Duyne v. Thayer, 14 Wend. 233; and 19 ibid. 162; Phyfe v. Riley, 15 ibid. 248 ; Watson v. Spence, 20 ibid. 260 ; 4 Kent’s Comm. 188, 2d ed.)
In the view I have taken of the effect of the limitation prescribed in the 52d section of the same article of the revised statutes, it is unnecessary for me to pursue this inquiry.
There must be the usual decree for a redemption and for taking the accounts before a master.
And see also Bellinger v. Shafer, ante, p. 293.
In Anderson v. Slather, Jane 27, 1845, before Sir Knight Bruce, V. C., where the mortgagor conveyed the equity of redemption to trustees, in settlement for his daughter on her marriage, out of which she was to receive an annuity, and the trustees were to raise out of the same a sum of money for the children of the marriage ; it was held that the daughter and her children were necessary parties to a suit for the foreclosure of the mortgage. (9 Loud. Jur. Rep. 806 ; 14 Law Journal, N. S., Chancery, 377 ; 2 Eq. Rep. 245.)
In Quackenhush v. Danks, (1 Denlo, 128,) the same doctrine was applied by the Supreme Court to a statute exempting property from execution and distress for rent. (And see the argument of Bronson, Justice, in Sackett v. Andross, 5 Hill 334, &c. Also, Doe, d. Evans, v. Page, 5 Queen’s Bench R. 767, and 8 Lond. Jur. Rep. 399 ; Doe d. Jukes v. Sumner, 14 Mees. & Welsby, 39, and 9 Lond. Jur, Rep. 413 ; Doe v. Angell, 10 ibid. 705, in the Queen’s Bench, Feb. 12, 1846.)