We have come to the conclusion that the suit is not maintainable by the complainants, as husband and as heir at law of the late Euphemia Fussell, to enforce a trust created in her favor on the land mentioned in the bill. The language in the condition of the bond which is relied on to establish the trust is evidence of an agreement on the part of the defendant to convey said land to said Euphemia on payment by her of the debts for the securing of which he held it, or, resort being had to the land for their payment, to convey to her so much of the *554 land as should not be required for tbeir payment. Such an agreement might amount to a trust if tbe land was conveyed to tbe defendant on tbe faith of it, tbe grantor having tbe power to convey it on such trust. But tbe grantor had no sucli power. He held tbe land simply as security, subject to a resulting equity or trust in tbe complainant, John Fussell, Senior. To create sucb a trust, John Fussell, Senior, should bave joined in tbe conveyance, or in some other way released bis resulting interest for the purpose of it. Tbe agreement was without consideration, and therefore, considered as an agreement simply, it could not create a trust which could be enforced in equity.

We think the only ground for the suit is that the defendant held the land as security only, subject to a resulting trust or equity in favor of John Fussell, Senior, and that after he had sold it he held the proceeds, or rather the surplus of the proceeds beyond what was necessary for the payment of the debts secured, subject to the trust or equity. The defendant sold the land March 6, 1871, and was paid for it' March 7, 1871. This suit was not commenced until December 28, 1880. The defendant sets up the statute of limitations in bar of the suit. Is the defence good ? The rule is that in cases of concurrent jurisdiction courts of equity are bound by the statute equally with courts at law, and that in many cases where the jurisdiction is not concurrent they apply the statute by way of analogy. Wood on Limitations, § 58, and notes. We think the surplus was probably recoverable at law, in an action for money had and received. 1 Jones on Mortgages, § 341; Vandusen v. Worrell, 5 Abb. Pr. N. S. 286; Arms v. Ashley, 4 Pick. 71. Such a surplus, arising under a mortgage in the usual form with power of sale, may be so recovered. Jackson v. Stevens, 108 Mass. 94; Cook v. Basley, 123 Mass. 396; Buttrick, Adm’r, v. King, Adm’r, 7 Met. 20; Cope v. Wheeler, 41 N. Y. 303; Hiester v. Maderia, 3 W. & Serg. 384. If the surplus here was not recoverable, it is because the deed, being absolute on its face, would not be recognized as a mortgage at law. But if the only remedy was in equity, we think that nevertheless the statute would apply by analogy; for we can see no reason why such a mortgagor by equitable construction should have any advantage in this respect over an ordinary mortgagor. 1 Jones on Mort *555 gages, 3d ed. § 341; Hancock v. Harper, 86 Ill. 445. Here, moreover, there was an adverse bolding known to the complainant, which would bring the statute into operation even though the trust were express. 2 Perry on Trusts, §§ 864, 865; Wilson v. Green, Weare & Benton, 49 Iowa, 251. We think, too, that the suit might have been maintained immediately after the sale, for it was the duty of the defendant to pay over the proceeds, except what he had a right to retain, to the parties respectively entitled thereto without delay.

This ease was sent to the master by interlocutory decree before it was decided whether the statute would apply or not. The question was raised, but it was only slightly argued, the defendant’s counsel passing to other points on being reminded that the bond which was then put forward as the ground of relief was under seal. It thus happened that the court gave it no further consideration. We do not think it can be said that the defendant waived it, nor do we think he is precluded from raising it anew by the interlocutory decree, such a decree being open to revision on final hearing. Fourniquet v. Perkins, 16 How. U. S. 82. We do think, however, that the defendant was in fault in that he did not, if he meant to insist upon it, recall the attention of the court to it again before the decree was entered, and so save the expense of the hearing before the master. Therefore while we dismiss the bill, we shall dismiss it without costs and without prejudice to any action at law which may hereafter be brought on the bond.

Decree accordingly.