The opinion of the Court was delivered by

The bill in this case was for foreclosure of a mortgage of a lot of land in the village of Chester. The defendant is a purchaser from one who held, through intermediate conveyances, from the mortgagor, and the defendant and those under whom he claims have been in possession of the land for more than ten years prior to the institution of these proceedings. He relied on the plea of the statute of limitations. At the circuit the cause was not argued, nor the authorities cited. The plea was sustained.

The mortgage of the complainant was duly recorded prior to the conveyance in fee on the part of the mortgagor. Under these circumstances it was first held, in Thayer vs. Cramer, 1 McC. Ch. 395, that the plea of the statute was inapplicable. Afterwards in Smith & Cuttino vs. Osborne, 1 Hill, Ch. 342, that decision was reviewed and the doctrine re-affirmed. Since that time the authority of Thayer vs. Cramer has been repeatedly recognized, as in Drayton vs. Marshall, Rice Eq. 374, and may be regarded as the settled law.

As the cause was heard only on the plea, it is proper that the defendant should have the opportunity of availing himself of any other defence to which he may consider himself entitled.

*83It is ordered and decreed, that the decree of the Circuit Court, sustaining the plea of the statute of limitations and dismissing the complainant’s bill, be reformed — that the defendant’s plea be overruled, and that he have leave to answer within thirty-days after notice hereof.

Motion granted.