The opinion of the court was delivered at the September term, 1848, by
Shaw, C. J.This case being set down to be heard on bill and answer, the facts stated in the answer are therefore not controverted, but admitted to be true. The case, upon the facts, is a very complicated one ; but without going at large into it, it will be sufficient to allude briefly to the facts, and to state the questions arising upon them. The case, in many respects, is like that of Eastman v. Foster, 8 Met. 19, but in some respects it differs essentially.
As to the jurisdiction of this court in equity, that case presented a question as to the distribution of the proceeds of an insolvent estate, of which the court had jurisdiction by the express provisions of the statute, whether the property was chargeable with a trust, or not. And the only question was, whether, in an equitable distribution of effects, amongst parties legally and equitably entitled thereto, property which *518had been mortgaged to a surety, for the sole purpose of securing the payment of the debts, for which he was surety, should be deemed subject to an equitable lien in favor of the creditors having such claims.
A second marked distinction is, that in that case there had been no alteration of the property; parties had been exonerated by the statute of limitations, which they might or might not plead ; but the mortgaged premises had not been released, or made the subject of any subsequent mortgage, nor did any claim of any subsequent attaching creditor or incumbrancer intervene; it was solely a question between one class of creditors claiming an equitable lien under those mortgages, and the general creditors, who could only claim the property, as it beneficially stood in the hands of their debtor, at the time of the institution of the proceedings in insolvency.
In this case, the complainants can only claim equity jurisdiction for the court on the ground of trust. Certainly there was no express trust; it was a mortgage from Adams to Snow to secure to him a debt of $71, and to indemnify him against his liability as surety on the note, in virtue of which the complainants now seek to charge the land. Such a trust is not necessarily implied from the fact of giving the mortgage, and it is expressly denied by the answer. But further, it is stated and not denied, that the mortgage from Adams to Snow was conditioned to secure a debt due from the mortgagor to the mortgagee of $71. This debt has never been paid. How can any body, having a mere equitable lien or claim, take the property out of the hands of one who has an equity, accompanied by the legal title, in any other mode than by redeeming ?
But further, we think the subsequent conveyances, mortgages, sales of the equity of redemption, without notice or claim, legal or equitable, on the part of these complainants, for a long series of years, after the debtor was dead, and after the liability of the surety was barred by the statute of limitations, must now preclude them from setting up such a claim.
Bill dismissed.