Decree, pro forma, that the bill be dismissed. The facts appear in the opinion. J. P. Lamson, for orator. So long as the relation of mortgagor and mortgagee exists, the statute does not commence to run. 2 Jones, Mortg. § 12; Waldo v. Rice, 14 Wis. 286; Green v. Turner, 38 Iowa, 112; Crawford v. Taylor, 42 Iowa, 260; Humphrey v. Hurd, 29 Mich. 44; Rockwell v. Servant, 63 III. 424. The payments made by Calvin affect Mahala and Edson the same as though they were made by them. 2 Jones, Mortg. §§ 1198, 1201, 1202; Pears v. Lainy, L. R. 12 Eq. 51; Roddam v. Morley, 1 De Gex. & J. 1; Harrington v. Slade, 22 Barb. 161; Martin v. Bowker, 19 Vt. 527; Hough v. Bailey, 32 Conn. 288; Bacon v. McIntire, 8 Metc. 87; Hughes v. Edwards, 9 Wheat. 489; Converse v. Cook, 8 Vt. 164. S. C. Shurtleff, for defendants. There can be no foreclosure of the six acres conveyed to defendant Mahala. This debt is conclusively presumed to be paid, in analogy to the statute of limitations. Whitney v. French, 25 Vt. 663. She never acknowledged the mortgage, and did not know of its existence. The mortgage, then, would rest on the balance of the real estate. Lyman v. Lyman, 32 Vt. 79; Root v. Collins, 34 Vt. 173. ROYCE, C. J. The mortgage which the orator seeks to foreclose was executed July 30, 1854, by Ira Batchelder to Jeremiah Carleton, to secure the payment of three promissory notes payable to said Carleton. The orator purchased of said Carleton two of said notes for the sum of $300, September, 25, 1863. There was then due on said notes $340.40, but the orator only asks to have the $300 and annual interest allowed. Some portion of the mortgaged premises was owned by and had been in the possession of the defendant Mallory, and his grantees, since 1865, and the bill as to him was dismissed. The only contention is as to the remaining portion of the mortgaged premises. July 12, 1866, one Bemis, who was then the owner, conveyed by deed of warranty eight acres of the same to Calvin York. January 16, 1861, D. B. Pitkin and wife, who were then the owners, conveyed to Mahala York, the then wife of Calvin York, six acres of the same, and on the same day Pitkin and wife conveyed the remainder of the mortgaged premises, lying in lot 4 of the fifth range, to Calvin York. February 18, 1875, Calvin York and wife con. veyed the premises that had been so conveyed to them to their son Edson, and on the same day Edson executed a mortgage to the said Calvin and Mahala of the same premises to secure their maintenance during life, which was the consideration for the conveyance to him; and, in addition to the stipulation contained in said mortgage, agreed with the said Calvin by parol, at the time of the execution of the mortgage, to assume and pay a certain debt of the said Calvin to the orator, at the time represented to him to be about $100, and not to exceed that sum. The said Mahala, Calvin, and Edson have been in the possession of the premises ever since the respective conveyances to them. Calvin died about July, 1876, and Mahala since the commencement of this suit. The defendants Mahala and Edson by their answers claimed payment, and the benefit of the statute of limitations. Whether either defense is available must depend upon the facts found by the master. It is found that, at the time Pitkin conveyed to Calvin and Mahala, Pitkin paid Carleton one of the notes secured by the mortgage, and that Calvin assumed and agreed to pay $300 of the Carleton mortgage; that, after the two notes passed into the hands of the orator, Calvin had a conversation with him in relation to them, and acknowledged that it was his duty to pay them, and on October 31, 1871, paid the orator $78, which was indorsed upon the $100 note, and that July 6, 1874, Calvin York paid the orator $95 on this mortgage. This last finding was made upon the testimony of the orator, against the defendant's objection, but no question has been made as to its admissibility, that an indorsement was made upon one of the notes, with the consent of Edson, October 1, 1876, of $17.50, for money that was then due from the orator to Edson, he then supposing it was being made upon the $100 which he had assumed and agreed to pay, and which he then acknowledged and promised the orator to pay. Neither Mahala nor Edson had any other knowledge than what the record furnished of the existence of the mortgage. It is not found that any payments have been made except those that have been applied upon the notes, so the defense must rest upon the claim that the right is barred by the statute of limitations. It was held in Martin v. Bowker, 19 Vt. 526, that while courts of equity act upon a principle of analogy to the statute of limitations, and if the lapse of time has been such that a suit at law could not be maintained for the recovery of the mortgaged premises, a court of equity would not sustain a suit for the foreclosure of the equity of redemption, but would presume payment and satisfaction of the mortgage debt; but that the payment of interest upon the debt, or any portion of the principal, or any other act recognizing the existence of the mortgage, and that it was unsatisfied and obligatory, would be sufficient to repel the presumption of payment, and take the case out of the operation of the statute. In 2 Jones, Mortg. § 1198, it is said that a payment of interest, or part of the principal, renews the mortgage, so that an action may be brought to enforce it within the statutable period thereafter, and that this rule is universally recognized; and that, where there are several persons interested in the equity of redemption, such payment by one of them keeps alive the right of entry, not only against him, but also against all the other owners of the equity. The record was constructive notice of the existence of the mortgage. The orator had no other claim against the Yorks but the mortgage notes, and he had a right to understand that the payments made by them were intended to apply upon these, and to treat them as an admission of the debt, and their liability to pay it. The orator could not be deprived of the security given by the mortgage by any conveyances that might be made by the mortgagor or his grantees. As affecting his security, he was not bound to inquire what conveyances had been made; and, when the statute bar was removed, he was entitled to all the security given by the mortgage. The mortgage having been renewed by the payments made, that portion of the premises deeded to Mahala is equally liable with the portion deeded to Calvin for the payment of the debt secured by the mortgage. Decree reversed, and cause remanded, with a mandate in accordance with the views above expressed. (59 Vt. 477) KOPPER D. DYER.1 DYER v. KOPPER and others. 1. MORTGAGE-FORECLOSURE-REDEMPTION PREVENTED BY ACCIDENT. Where a mortgagor is prevented by accident, without his fault or neglect, from paying an installment on a decree of foreclosure on the decree-day, equity will allow him to redeem, on bill brought for that purpose, but on terms that he satisfy the equitable rights of the mortgagee. 2. SAME-BILL TO REDEEM. K., a mortgagor, was, by decree of foreclosure, ordered to pay to the clerk of court at Middlebury, Vermont, for D., mortgagee, $500 on or before January 1, 1885. To do this K. depended on money agreed to be paid him on delivery of leases in New York city. K. went to New York, and appeared December 31, 1884, at appointed Reported by John H. Senter, Esq., of the Montpelier bar. place and hour, but the lessor was not there. K., as soon as possible, found him, delivered the leases, and received the lessor's check, but banking hours had passed. K. at once sent the check for deposit to the New York bank where he did business, and where it was credited him January 2d, the next New York business day. K. sent his personal check to the clerk, who received it at Middlebury the morning of January 1st. D., on that day, refused to receive it in payment, and the clerk put it in the Middlebury bank for collection, which was promptly made, and of this the clerk was notified by telegram January 3d. Meantime D. obtained a copy of the decree for record, a writ of possession, and took possession of the premises. Held, on K.'s bill for relief, that there had been such accident as would entitle him to redeem on equitable terms. 3. SAME-PLEADING-AMENDMENT-BILL MISTAKING RELIEF-COSTS. It was decreed that K., mortgagor, pay to the clerk of court for D., mortgagee, money in two installments, or be foreclosed. He was prevented by accident from paying the first installment on its decree-day, but very soon after got it into the clerk's hands. D. meantime took writ of possession, and thereon possession of the premises. K. tendered D. the second installment on its decree-day, and D. refused it, K. brought his bill, praying that his acts be held a compliance with the foreclosure decree, and the chancellor so decreed. Held, that the decree granting the prayer of K.'s bill be reversed, and that D. recover his costs; but, as it appeared that K. was entitled to redeem on bill brought for that purpose, that he be permitted to amend his bill into a bill to redeem. 4. EQUITY-CROSS-BILL-NEW PARTIES. New parties cannot be brought into a case by a cross-bill. 5. SAME-DECREE PRO CONFESSO-EFFECT. Where defendants are jointly interested, a decree pro confesso as to some merely takes away their standing in court, and disentitles them to appear or be heard on many questions, certainly without an order of court; but the success of the others avails for them, and the bill will be dismissed as to all.. Appeal from chancery, Addison county, December term, 1886; TAFT, Ch. Bill in chancery seeking relief from a decree of foreclosure, which had become absolute, on the ground of accident. Heard on pleadings and master's report. Decree that the orator is entitled to relief according to the prayer of his bill, and that the cross-bill of defendant, Dyer, be dismissed, with costs, from which defendant appealed. In August, 1880, defendant, John M. Dyer, sold and conveyed to Frederick Kopper the premises in controversy, known as the "Lake Dunmore Hotel Property," together with a large amount of personal property used in connection therewith, for $13,500. Of said purchase money, $10,500 was secured by mortgages of said real estate and personal property, both executed by Kopper to Dyer, August 23, 1880, conditioned that Kopper pay Mary C. Goddard, according to their tenor, certain notes, amounting to $10,500, which Dyer had executed, and which were secured by mortgage on his other real estate: that Kopper pay all unassessed taxes on the Lake Dunmore property on the rand list of 1880; and that he keep the premises insured in the sum of $5CM for Dyer's benefit. The premises have been continually occupied by Kopper, with the exception stated below, and he is now in possession. The taxes were paid by Kopper to and including 1884. The condition respecting insurance has not been complied with. In 1884, Dyer paid insurance premiums to the amount of $75. For default in payment, Mary C. Goddard foreclosed her mortgage against Dyer, and obtained a decree of foreclosure at the September term, 1882, of the Franklin county court of chancery. January 19, 1883, Dyer, fearing that Kopper might not satisfy the Goddard decree, and for the purpose of being sure that his own property would not be sacrificed, procured the National Life Insurance Company to hold in readiness for him the amount required to pay that decree; and on May 23, 1883, obtained the same from the company, and paid it in satisfaction of that decree. Dyer was also compelled to pay the company the further sum of $193.85, in consideration of its having held said amount in readiness from January to May. Dyer also paid $32.86 costs of the Goddard foreclosure. Dyer made several attempts to foreclose his mortgage against Kopper, and finally it was decreed "that, unless the said Frederick Kopper pay to the clerk of this court, for the benefit of the orator, the sum of $500 on or before January 1, 1885, and the sum of $8,052.09 on or before the first day of June, 1885, he, (the said Frederick Kopper,) and all persons claiming under him, shall be foreclosed and forever barred from all equity of redemption in said premises." Kopper did not pay the $500 as required by the decree, but sent his personal check under circumstances stated in the opinion. January 2, 1885, Dyer obtained of the clerk of the court a certified copy of the decree for record, and a writ of possession thereunder, and immediately took possession of the property, and has paid taxes thereon since. Kopper at once brought the original bill in this cause, praying for such relief as shall give the orator the benefit of the payment already made, as much as he would have had if the currency had been paid into court, as ordered by the decree; that the decree be opened, and further order made on terms, meet to the court, to relieve the orator from the loss that must result to him should no relief be granted; and for an injunction restraining the defendant from any further proceedings under the writ of possession, and from exercising any use or control of the premises. The bill and injunction were served, and Dyer withdrew from the premises. June 1, 1885, Kopper caused the sum of $8,600 to be tendered Dyer in payment of the installment of said decree falling due on that day. Dyer refused to receive it, claiming that Kopper did not owe him, and that the property was his. Kopper afterwards filed his supplemental bill in this cause, setting up the tender, and claiming the benefit thereof, with said payment of $500 to the clerk as a compliance with the terms of the foreclosure decree. Dyer filed his answer to said bill, September 22, 1885, and an amendment thereto, February 20, 1886. May 29, 1885, Kopper conveyed the premises, together with the personal property thereon, which had been mortgaged to Dyer, to Wyman H. Merritt and Frank E. Briggs by warranty deed, which deed was given Merritt and Briggs as security to them for the loan of the money which was tendered to Dyer, June 1, 1885. April 14, 1886, Dyer filed his cross-bill against Kopper, Merritt, and Briggs, for a disclosure of the mortgaged personal property, for surrender of the premises, and an accounting for their use; or, if the decree is to be opened and further time given to redeem, for a correction of the decree, and an accounting and foreclosure. Demurrers to the cross-bill having been overruled, the same was taken as confessed against Merritt and Briggs; and Kopper filed his answer thereto Jure 19, 1886. The other facts appear in the opinion. Stewart & Wilds, for Dyer. Ormsbee & Briggs, J. M. Slade, and Noble & Smith, for Kopper. ROWELL, J. Kopper seeks relief on the ground of accident. That chancery may grant relief on that ground, in cases of this kind, cannot be doubted; and the first question that arises is, has the orator made a case that calls for the interposition of the court in his behalf? The term "accident," in its legal signification, is difficult to define. Judge Story defines it as embracing, "not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force, but such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party" affected thereby. 1 Story, Eq. § 78. Mr. Pomeroy justly criticises this definition as including what are not accidents at all, but mistakes, and as omitting the very central element of the equitable conception, and defines it thus: ""Accident' is an unforeseen and unexpected event, occurring external to the party affected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right, or becomes subjected to some legal liability, and another person acquires a corresponding legal right, which it would be a violation of good conscience for the latter person, under the circumstances, to retain." 2 Pom. Eq. § 823. And the chief point of the thing is that, because of the unforeseen and unexpected character of the occurrence by which the legal relation of the parties has been unintentionally changed, the party injuriously affected thereby is, in good conscience, entitled to relief that will restore those relations to their original character, and place him in his former position. Id. § 824. But, as a general rule, relief will not be granted unless it can be done with justice to the other party; for, if he cannot be put in as good a situation as he would have been in had the other party performed, the court will not interpose. Rose v. Rose, Amb. 331. Equity, in many instances, relieves against forfeitures occasioned by the non-payment of money at a day certain; and this, although there is no accident, but negligence instead, on the ground that the condition and the forfeiture are regarded as merely security for the payment of the money. This is the ground on which tenants are relieved from forfeitures for the non-payment of rent as stipulated, and mortgagors are allowed to redeem after the law-day has passed. And although the agreement is not wholly pecuniary, nor measured by pecuniary compensation, still, if the party bound by it has been prevented by accident, without his fault, from an exact fulfillment, so that a forfeiture is thereby incurred, equity will interpose, and relieve him from the forfeiture, upon his making compensation, if necessary, or doing anything else in his power to satisfy the equitable rights of the other party. 2 Pom. Eq. § 831. In Cage v. Russel, 2 Vent. 352, it is laid down as a standing rule of equity that a forfeiture shall not bind when the thing can be done afterwards, or any compensation can be made for it. Forfeitures are odious, and courts struggle against them, and relief is granted for the non-performance of diverse collateral acts whereby they are incurred; as for not laying out a specific sum in repairs in a given time, (Sanders v. Pope, 12 Ves. 282,) for cutting down timber when covenanted against, (Northcote v. Duke, Amb. 511,) for not renewing a lease in time, (Rawstorne v. Bentley, 4 Brown Ch. *415,) and the like. Relief is also granted against forfeitures incurred by unintentional breaches of the condition of mortgages for support, on terms that the party in fault fully compensate and indemnify the other party for all he has lost by reason of the breach. Henry v. Tupper, 29 Vt. 358. In Adams v. Haskell, 10 Wis. 123, the defendants were prevented by accident from reaching the place of a foreclosure sale until after it was completed, and the court for that reason ordered a resale, but on terms. In Pierson v. Clayes, 15 Vt. 93, the orator, by reason of pending negotiations of settlement, without negligence on his part, let the time of redemption expire; and he was relieved by opening the decree, and giving further time to redeem. The case of Bostwick v. Stiles, 35 Conn. 195, is confessedly much in point. That was a bill to open a decree of foreclosure, and obtain further time. The mortgage debt was about $4,000, and the value of the premises twice that sum. The time limited for payment was August 5th. The petitioner intended to redeem, but, not having sufficient means of his own, he applied to his uncle-a man of property-to help him, and he agreed to, and to furnish the money on August 3d, on which the petitioner relied; but, for some reason not explained, he did not furnish the money as agreed, and the petitioner delayed making other arrangements until the evening of August 5th, when he applied to Russell for assistance. Russell had no money, but plenty of government bonds, and agreed to make payment in them if defendant would take them; and accordingly went to defendant's house that evening, after defendant had gone to bed, and told his wife that he had come prepared to redeem the mortgage for the petitioner, but defendant did not get up, but sent word by his wife that he was sick, and Russell went away. On this state of facts, the court held that the petitioner's failure to pay on August 5th was occasioned |