The surrogate has jurisdiction to decide upon all claims arising between the administrator and the estate of the deceased, whether such claims be equitable or legal. (Gardner v. Gardner, 7 Paige, 112; Jumel v. Jumel, id., 591; Dayton, Surrogate, 598.) It was therefore proper to inquire as to the supposed liability of the administrator to the estate, and the surrogate had jurisdiction to pass upon the questions made in respect thereto. (Jumel v. Jumel, 7 Paige, 591.) It may be assumed that the conveyance by George D. Westfall and his wife to Samuel D. Westfall, though absolute upon its face, was, in fact, a security by way of mort-' gage. (Horn v. Keteltas, 46 N. Y., 608.) It was recorded *544simply as a deed, and therefore a purchaser from the grantee, in good faith, or from one deriving title from the grantee, in good faith, with no actual notice of the fact that it was a mortgage, would acquire a good title. (Willard’s Eq. Jur., 430.)
Joseph Westfall’s conveyance on the 1st day of October, 1836, to the Yandormarks, of the 124 acres, vested in them a good title to the premises. It may be assumed that Joseph would have hold the premises subject to his mother’s dower, and to her life estate in Cynthia’s share, and that upon an action brought against him to redeem them from the mortgage debt, the amount being ascertained and paid off or tendered, that the mother would have been entitled to recover her dower and the life estate in Cynthia’s share. But that action was not brought by her while Joseph .had the title to the premises. He sold the premises and received pay therefor from the Yandermarks, and they acquired a good title to them, as we have before seen : now assuming the moneys received by Joseph for the sale to be, for the purposes of the question made here, land, still, the mother must have the amount of the mortgage debt ascertained and paid or tendered, in order to entitle her to come in for any share of the fund remaining after the mortgage debt was paid. She made no claim to such moneys in her lifetime, she did not seek to redeem her dower, nor to redeem her life estate in Cynthia’s share. Presumptively she knew of the sale made by Joseph to the Vandermarks, in October, 1836, and she made no claim upon him prior to her death, which occurred February 14, 1870. Assuming that she had the same right to the moneys that she would to the lands, had they remained in the hands and possession of Joseph, she failed to bring her action in equity for an accounting and ascertainment of the amount due on the mortgage debt, and to redeem therefrom within ten years, and her right of action must be held to be barred by the lapse of thirty-four years or upwards.
It was held that such an action must be brought within ton years in Miner v. Beekman (50 N. Y., 337.) In Hubbell v. Sibley (50 N. Y., 469), it was held that such an action is purely an equitable one and must be brought within ten years, and it was held in that case that the statute begins to run when the mortgagee enters under claim of title. Now, it may be said upon *545the facts in this case that when Joseph bought the 124 acres in September, 1834, he went into possession as mortgagee and claimed to own the lands.
Again, in October, 1836, when he gave his warranty deed to the Yandermarks, he claimed to own the lands, and took and received the moneys, representing the purchase-money as his own and claimed them, and continued to claim to own them, down to the time of the death of his mother. She made no claim to the contrary of him. She might have brought a suit to have her rights ascertained and declared,' and for leave to pay off the mortgage debt. She delayed to do that while Joseph had the possession of the lands, and she did not bring her action within her lifetime. (2 Wash. Real Estate, 164, book 1, m. p. 555; Sawyer v. Spofford, 4 Cush., 599.) And we think her estate cannot enforce, against- her administrator, a claim to any of the moneys received by Joseph at the time of the sale to the Yander-marks.
The claim is barred by the statute of limitations. (3 E. S. [5th ed.], 515, Code, § 115.) This defense was duly insisted upon before the surrogate, and, we think, was improperly overruled. (Smith v. Remington, 42 Barb., 75.) If it be assumed that the title to the lands remained in the original grantor, inasmuch as his deed was but a mortgage, and that his heirs and widow took from him, then they should have brought their action to redeem or tendered the money due upon the mortgage debt as a condition precedent tp the right to bring a law action for the land or the moneys received therefor. (Trimm v. Marsh, 54 N. Y., 599.)
The action at law was not brought before the same became barred by the statute. Dower is barred by lapse of twenty years. (3 R. S. [5th ed.], 33.) In any aspect we can look upon the claim set up for the proceeds of the land or for the land, wo think it must be held barred by the statute of limitations. (Borst v. Corey, 15 N. Y., 505.) The surrogate therefore erred in charging the administrator, in the settlement of his accounts, with the claim made for a portion of the moneys he received upon the sale of the lauds in October, 1836, to the Yandermarks, and for that error the decree should bo reversed and the proceedings *546remitted to the surrogate of Monroe, with costs of this appeal allowed to the appellant, to be taxed and allowed him upon the final accounting out of the estate.
Talcott, P. J., and Smith, J., concurred.Decree of the surrogate of Monroe county reversed, and proceedings remitted to the surrogate, with costs of tins appeal allowed to the defendant on the final accounting.