delivered the following dissenting opinion:
Begretting to differ, in some respects with my brethren, in the view they have taken of the merits of this case, I deem it proper to record my dissent, with a brief statement of the considerations that have affected my judgment.
Whilst I do not accord in the conclusions as to the facts and the law applicable thereto, under the first question presented in the opinion of the Court, I much more differ in the results under the second. There is no doubt the laiv is well established, that limitation operates as a bar to relief in equity *73as well as at law,- the Courts having adopted the provisions of the statute by construction and analogy — that limitation applies to trust as well as to legal estates — that although it does not operate between trustee and cestui que trust; with trustee and cestui que trust on the one side, and strangers on the other, it will operate — that the equitable interest, dependant upon the legal estate, in a trustee, may be divested by the disseizin of a stranger who has no notice of the trust, and the rights of the cestui que trust may be barred by the same acts as deny recovery to the trustee holding the legal estate. I do not understand the authorities as carrying the principle of construction to such extent as to conclude, by the laches of the trustee, the equitable rights of the cestui que trust, who is under disability from infancy, coverture or otherwise, especially where the trust and the disability are known to the claimant.
That although in the case of a mortgage the equity of redemption may be barred by lapse of time, the possession of the mortgagee, claiming to hold adversely, can give him no greater rights than a stranger or disseizor holding possession. In this case the fact of Mrs. Crook and her husband, the one cestui que trust the other trustee, having by an authorized mode executed the mortgage to Mr. Glenn, which she was competent to make in that form and which was binding upon her by reason thereof, ought not to affect her interest beyond the legal scope and effect of that instrument. Her disability as a feme covert prevents limitation from issuing against her during its continuance; and Mr. Glenn, who had notice of the trust estate and the equitable interest of Mrs. Crook, the cestui que trust therein, was entitled to no right against her from adverse possession. It by no means follows, because he was rightfully in possession as mortgagee under conveyance from her as well as her husband, and by her consent in default of payment of the mortgage debt, that his possession however long continued during her coverture, although not accounting with the trustee for rents and profits, coixld operate to establish a title in him in the same manner and to the same extent *74as if Mrs. Crook was under no disability. Such an application of the analogies of the statute, it seems to me, is not in consonance with the first exceptions and savings provided for therein, and must occasionally result in great injustice to persons under disability, without commensurate general advantages. Infants, insane persons, feme coverts, whose rights are saved by the provisions of the statute under such a view, are excluded from the benefit of its reservations and a harsher interpretation given to it by Courts of Equity, than its express provisions warrant in á Court of Law. Such a construction virtually abrogates the savings of the statute, whilst it rigorously enforces its other provisions. See Allen vs. Lloyd, 2 Verm., 368.
From the character of this case I do not perceive that there has been any laches on the part of the complainants in the prompt assertion of their rights, after the death of their ancestor Sarah Ann Crook. Limitation relied upon by the respondents as a bar to recovery, ought -not to be allowed, because the disability of Sarah Ann Crook as a feme covert, protected her against such defense. In the absence of a foreclosure of the mortgage, the fact of thé return, acceptance and re-possession of the factory property by Mr. Glenn, the ancestor of the respondents, the conveyance of which property to Crook, as trustee for his wife, was the consideration of the mortgage and to secure the payment of which the same was given, and the filing of the bill to foreclose the said mortgage, and the dis- ' continuance of any further proceedings thereon, the institution of the suit at law for the recovery of the mortgage debt and its abandonment, with the entry, “ off with costs,” 2d September, 1845, are facts sustaining the theory of a waiver or some abrogation of the security of the mortgage, in the absence of any satisfactory proof to the contrary. The mortgage from Crook and wife under such circumstances, should be treated as void and inoperative to affect the rights of Sarah Ann Crook. The property embraced therein should be released therefrom and restored to the complainants, together with *75any rents and profits received by the respondents since the death of Sarah Ann Crook. The decree below onght to be reversed and the cause remanded for proper proceedings, in conformity with such views of the equity of the parties.