words in the statute must receive a general construction; and if there be no express exception, the court can create none. It was agreed without contradiction in Slowel v. Zouch, Plowd. 369 b, 371 b, that the general provision in the statute of fines would have barred infants femes covert, and the other persons named in the proviso equally with persons under no disability, if they had not been named in the exception or saving clause. So in Dupleix v. De Roven, 2 Vern. 540, the lord keeper thought it very reasonable that the statute of limitations should not run when the debtor was beyond sea; but there was no saving in the case; he could not resist the plea of the statute. The same doctrine is declared in explicit and expressive terms by Sir Wm. Grant in Beckford v. Wade, 17 Ves. jun. 87, who refers to the opinion of Sir Eardley Wilmot in Lord Buckinghamshire v. Drury, Wilmot's Opinions, 177, s. 194, and to the decisions in the common law courts; Hall v. Wybourn, 2 Salk. 420; Aubry v. Fortescue, 10 Mod. 206, that though the courts of justice be shut by civil war, so that no original could be sued out, yet the statute of limitations continued to run.

The opinion of Lord Redesdale, in Hovenden v. Annesley, 2 Sch. & Lef. 630, 640, and of Lord Manners, in Medlicott v. O'Donnell, 1 Ball & Beatty, 156, are remarkably elaborate in tracing the authorities, and in enforcing the duty of a court of equity to render entire obedience to all the provisions of the statutes of limitations.

Before I leave this point, I ought to notice the case of Lamar v. Jones, 3 Harris & McH. 328, in which the late chancellor Hanson, of Maryland, adopted the English rule, and held that the equity of redemption was barred after twenty years' possession by the mortgagee, without interest paid, or on account, and when the lapse of time was relied on in the answer, and ten years had expired after the disability had ceased. This would have been a case perfectly in point, but it was reversed on appeal, on the ground that the court of chancery in England had not adopted that part of the statute of limitations which allows only ten years to infants, after they come of age, to bring their actions; and the court of appeals considered what Lord Talbot had said in Belch v. Harvey, as only a dictum. But I apprehend that the opinion of Lord Talbot, formed as it was, after argument, and ready for delivery, has all the weight due to his very enlightened judgment. Lord Camden, in Smith v. Clay, 3 Bro. 639, note, cites that very case and opinion, to show that the statute of limitations, in all its provisions, had been adopted,

and become the "settled" law in equity. The case was also cited by the counsel in Lytton v. Lytton, 4 Bro. C. C. 458, and Lord Rosslyn admits that a similar proviso in the statute of limitations of 10 and 11 William III., limiting infants to five years after they come of age, to bring error, was to be adopted with the provisions of that statute, as applicable to the analogous case of bills of review. This is a clear judicial sanction to the doctrine of Lord Talbot, and therefore, as well upon authority as upon the reason and policy of the rule, I conclude that the court of appeals in Maryland was, in this instance, mistaken; and with respect to the learned chancellor's opinion, notwithstanding the reversal, I trust I may, without offense, be permitted to say Scaevolae assentior.

I conclude, accordingly, that the lapse of time is here a bar to the right of redemption. The plaintiff has not excused her laches, and the length of adverse possession being insisted on by the answer, the defendant is entitled to the benefit of it equally, as if it had been pleaded: 1 Atk. 494.

2. As this first point is decisive against the bill, I need not touch the other points raised on the part of the defendants; but it may, perhaps, be more satisfactory to the parties that I should notice at least one objection going to the merits of the case. The sale by the executors of the mortgagee appears to be also a valid bar to the redemption. There is no doubt that a wife may sell or mortgage her separate property for her husband's debts. Her deed, under her separate examination before a competent officer, is as valid with us as if she passed her estate by fine, at the common law. Nor do I perceive any objection to her competency to create a power in the mortgagee to sell in default of payment. If she can convey upon condition, she may prescribe the terms; and it is fit and convenient that the mortgagor should be able to confer the power. It is one that is recognized and regulated by statute, and is supposed, and has always been deemed, to be incident to the power to mortgage.

It was held, in Wotton v. Hele, 2 Saund. 177, that if baron and feme grant land belonging to the wife, by fine, with covenant of warranty, and the grantee be evicted by paramount title, covenant lies, after the husband's death, against the wife, upon the warranty. This shows that the wife may deal with her land by fine, as if she was a feme sole; and it is a much stronger case to hold her bound by the covenant of warranty, than by the power to sell. The power in this case was duly executed by the executors, without the heirs of the mortgagee. The power

in question was given to the mortgagee, his heirs, executors, etc., and a mortgage interest, before foreclosure, is considered in this court as a chattel interest, and personal assets, and belongs to the executor. Though the technical fee may descend to the heir, he takes it in trust for the personal representatives: Thornbrough v. Baker, 1 Ch. Cas. 283; Tabor v. Grover, 2 Vern. 367; Fisk v. Fisk, Prec. in Chan. 11; see, also, 2 Vern. 193; 1 Atk. 605.

The sale was in 1791, and one of the children and heirs of the mortgagee had, previously, in 1788, taken a release of the equity of redemption from Banta, and Nagel and wife. If the equity of redemption resided in either of them, at that time, there is no pretense for the present suit; if it did not, but was in the plaintiffs, then this purchase was no extinguishment of the mortgage debt. The purchase by Daniel Lindlow was of the equity of redemption. The testimony is sufficient, that six months' notice of the sale was given in one of the public papers, and if the proof was lame on this fact, yet the doctrine in Bergen v. Bennet, 1 Cai. Cas. 1 [2 Am. Dec. 281], would cure it. It was there held that, after a lapse of sixteen years, a mortgagee is not to be heard to question the regularity of the notice of sale, and that every apparent defect was to be supplied by intendment. The sale is proved by the auctioneer, but no deed from the executor is produced, except one, executed for greater caution by the executor, nineteen years after the sale, and which presumes a deed to have been executed at the time, and lost.

As between the parties themselves, and where there is no intervening right repugnant to the deed, I do not perceive the objection to the retrospective operation and effect of the deed produced. A deed will, in many cases, have relation back to the time of the conclusion of the bargain and sale: Jackson v. Bull, 1 Johns. Cas. 81. This will be more especially admitted in this court, which often considers what ought to be done as done, and will compel the specific execution of deeds. The defendants are bona fide purchasers for a valuable consideration, under the title of Daniel Ludlow, the purchaser at such sale. They appear not to be chargeable with notice of any outstanding equity in the plaintiffs; and I am of opinion that, independent of the bar arising from lapse of time, the plaintiffs are concluded by the execution of the power contained in the mortgage. There is no pretense or allegation of fraud in this case, and though the plaintiff was an infant when the sale was made,

she was, notwithstanding, barred of her equity; and if she was not, yet ten years had elapsed after her disability removed. The statute has no saving clause for persons laboring under disability, but it is peremptory "that no sale under such power shall be defeated, to the prejudice of any bona fide purchaser, in favor of any person claiming the equity of redemption. Where the statute makes no exception, the court, as I have already shown, can make none on the ground of any inherent equity applicable to infants. Though Ludlow, the purchaser at the sale, might be chargeable with notice of facts (if any then existed) fatal to his title, yet a bona fide purchaser under him is not affected by his notice. This is a settled rule: Jackson v. Given, 8 Johns. 141 [5 Am. Dec. 328].

3. There was a third objection, to which I think weight might be attached. The husband was to redeem the mortgage by paying the bond, and in case of sale, the surplus was to be rendered to him. If it be the true construction of the mortgage deed, that the equity of redemption was intended by the wife to be reserved to the husband alone, it seems that he may take it, and of course, dispose of it, as he did in this case; and the reservation will be good, if fairly procured: Penne v. Peacock, Cas. Temps., Talbot, 42; Brend v. Brend, 1 Vern. 213. But as I am not quite satisfied in such a construction, and of the evidence of such an intention, I have chosen to place this case entirely on other points, and I shall consequently dismiss the bill. There were other objections raised to the suit, on which I give no opinion.

There has been some doubt in my mind, how I ought to dispose of the costs; but considering the special circumstances of the case, and that the plaintiffs were in some degree recommended to apply to this court, in the opinion which was given against them on the ejectment at law, 8 Johns. 168, I have concluded that the bill ought to be dismissed without costs. It is not usual to give costs, where the unfortunate claimant has color of claim, and is barred by lapse of time. Costs were accordingly refused to the defendants, in Hovenden v. Annesley, and in Lamar v. Jones, to which I have already referred. Independent of the lapse of time; here were colorable grounds for discussion.

The bill was dismissed without costs.

DECOUCHE Vv. SAVETIER.

13 JOHNE. CH. 190.]

DESCENT OF PERSONAL PROPERTY.—The decent of personal property is governed by the law of the intestate's domicile.

MARRIAGE CONTRACT-LEX LOCI CONTRACTUS.-The lex loci contractus governs rights dependent upon nuptial contracts. Accordingly, where a contract of marriage was entered into in Paris, between French citizens, and it was provided in the contract that there should be a community of property between the parties, with certain reservations, and that in case of the death of either without lawful issue all the property of the one so dying, should go to the survivor, and the husband afterwards abandoned his wife and died in New York, without lawful issue, and possessed of a large personal estate, it was held that such estate, under the French law, went to the wife to the exclusion of the husband's relations.

LAPSE OF TIME AFFECTING TRUST.-No lapse of time bars a direct trust as between the trustee and cestui que trust. Hence, an administrator cannot, in equity, plead the statute of limitations against an heir or one entitled to a distributive share of the estate.

LIMITATION OF ACTION BY LEX FORI.-The limitation of actions is controlled by the lex fori, and not by the law of the place where the contract was made or where the plaintiff resides.

BILL by the plaintiffs, claiming the personal estate of an intestate, for an account and distribution against the defendants as executors and devisees of a deceased administratrix of such intestate. The suit was an amicable one, depending upon the facts stated in the bill, and admitted by the answer, which were substantially as follows: C. J. F., the intestate, contracted a marriage in Paris on the twenty-fourth of January, 1787, with M. S., both being at the time citizens of France. The substance of the marriage articles is stated in the opinion. In 1792 C. J. F. abandoned his wife, and left France with another woman, who personated his wife, and with whom he lived until his death in June, 1810, and by whom he had several children. At his death he was possessed of a large personal estate. Letters of administration upon his estate were, on the twenty-first of June, 1810, granted to the woman who personated his wife. The administratrix appropriated one third of the personal property to her own use and retained the other two thirds for her children. She died on the twenty-eighth of March, 1812, having devised all her property to her children, and appointed the defendants, S. and S., her executors. The executors had themselves appointed guardians of the children, who are minors and who are also joined as defendants, and took possession of all the property. The real wife of C. J. F. died intestate in