from the general rule, and relieve against the presumptive bar (a). For similar reasons, it has been held, that even a private account kept by the mortgagee of the rents and profits of the estate, showing that he has treated it as redeemable, will if discovered preserve the interest of the mortgagor. A decision to this effect was made in one case, where the possession of the mortgagee had subsisted for fifty years (b). But it is not enough to open the redemption after a great length of enjoyment, that an account of the profits has been kept by an agent or steward of the mortgagee nor is the case stronger, though such account has been preserved distinct from other accounts which relate to the remainder of the mortgagee's real property. It has likewise been resolved, that should the agent even prepare and deliver to the mortgagor a balanced statement of the net receipts on the one side, and of the sums remaining due in respect of the mortgage debt on the other; yet if, in doing so, he acted without the authority of his principal, the title of the latter will not be injured (c). Again if in any legal instrument affecting a mortgaged estate, such estate be noticed by the mortgagee as subject to redemption, this will take the case out of the general rule. A recital, therefore, or any inci (a) Procter v. Cowper, 2 Vern. 377; Anon. 2 Atk. 333. (b) Lake v. Thomas, 3 Ves. jun. 17; Fairfax v. Montague, cited by Lord Loughborough, 2 Ves. jun. 84; Campbell v. Beckford, 4 Ves. 474. See also the case before the (c) Barron v. Martin, 19 Ves. 327; Coop. C. C. 189, S. C. dental mention in a conveyance (a), settlement (b), or will (c),-acts which suppose deliberation,-that the subject of assurance or devise is a redeemable interest, will let in the title of the mortgagor; and twenty years from such acknowledgment must again elapse ere the new right which has been thus acquired will be barred (d). The fact of a bill of foreclosure having been brought within the last twenty years affords another ground for extending the power to redeem, the difficulty of accounting, which, as before observed, is the chief inducement to limit the mortgagor's equity, being in this case also shown not to exist. At least such is the presumption: for as a foreclosure is decreed only in default of the sums due on the mortgage being paid by a certain day, it is necessarily concluded that a mortgagee, who thus seeks the aid of the court, must be able to state a regular account,—that otherwise he would not file his bill. A second reason for allowing the extension is, that the course of proceeding spoken of amounts to an admission, that the estate is held only as a pledge (e). The result is the same, when a mortgagee enters (a) Smart v. Hunt, 4 Ves. 478, n; Price v. Copner, 1 Sim. and Stu. 347. (b) Hansard v. Hardy, 18 Ves. 455. See the facts stated in Hardy v. Reeves, 4 Ves. 466. (c) Ord v. Smith, Sel. Cha. Ca. 9. See also 3 Atk. 314, at the foot of the page. (d) See also Perry v. Marston, 2 Bro. C. C. 399; and Whiting v. White, 2 Cox, Rep. 290. (e) Palmer v. Jackson, 5 Bro. P. C. by Toml. 281; and the case cited by Sir Jos. Jekyll, in Ord v. Smith, Sel. Cha. Ca. 9. into an agreement with his mortgagor for the purchase of the equity of redemption: this likewise amounts to a plain concession that his interest is liable to be redeemed (a). A fortiori will the presumptive bar be avoided by proof of the mortgagee's having acknowledged by letter, either directly, or impliedly, that his interest in the property is not absolute, but merely temporary, as a security for the repayment of a loan (b). And it has been held, that even parol acknowledgments by a mortgagee, within the last twenty years, of the limited nature of his interest, and of his readiness to be redeemed, are sufficient to preserve the equity of the mortgagor (c). The expediency of this rule indeed was questioned by Lord Alvanley, who said, he could not help thinking, that it would have been very wise if no parol evidence had been admitted on the subject, though he would not then take upon him to contradict the authorities (d.) But Sir Wm. Grant, on the other hand, seems to have been of opinion, that parol evidence could not be excluded (e); and in the late case of Reeks v. Postlethwaite (ƒ), Sir T. Plumer, who went at great length into the ques (a) Conway v. Skrimpton, 5 Bro. P. C. by Toml. 187. Consider this case. (b) Hodle v. Healey, 1 Ves. and Bea. 536. See also Vernon v. Bethell, 2 Eden, 110. (c) Perry v. Marston, 2 Bro. C. C. 397. The facts are fully detailed in the note to Mr. Belt's edition of Brown's Reports; also in 2 Cox, 295; and in Coop. C. C. 165, n. The decree was afterwards reversed by Lord Thurlow, but on another point. The question before Lord Kenyon was not mentioned. (d) See 2 Cox 300; and Coop. C. C. 6. (e) See 19 Ves. 333. (f) Coop. C. C. 161, 169, et seq. tion, declared himself of a similar opinion. In many cases, he said, parol evidence was absolutely necessary to the proof of extraneous facts, which nevertheless, though after a lapse of twenty years, would indisputably prevent the loss of the equity of redemption. Such evidence, for example, was admitted to prove disabilities. But disabilities were not the only instances in which the general rule as to redemption was departed from. Receiving interest, keeping accounts, treating the property in any written instrument as a mortgage, had the same effect. There was no law which said, that evidence of such acts must be by writing. Then, after enumerating several cases both at law and in equity, in which rights were sustained by parol testimony, though admitting at the same time that Perry v. Marston (the case above referred to) showed the danger of always relying on such testimony, he said,—" But we must take care of the principle. To say there is danger of perjury amounts to little, because there is danger of perjury in all parol evidence, and the objection would therefore go to do it away entirely. All the court can do, is to watch and take care of it, when competent in its nature. Look to the danger the other way; that is, if you were to say, that after twenty years, there shall be no parol evidence for a redemption. A mortgagee may have amused his mortgagor every day with promises of settling. Suppose even interest to have been paid, but which was only to be proved by parol. How easy would it be, in such cases, and in many others which might be put, for the mortgagee to draw on the mortgagor till twenty years were elapsed, and then to hold him at defiance." It should be observed, however, that parol admissions by a mortgagee, that the estate continues liable to redemption, must, in order to prevail, be full, express, and unequivocal. An acknowledgment that the title originated in a mortgage is not enough, such acknowledgment carrying the right to redeem no further than the deed itself does (a). The evidence must go to prove, that the mortgagee spoke of it as a subsisting mortgage, and, moreover, that he was willing, and prepared to be redeemed. If the evidence only shows that the defendant had acknowledged to hold under a conveyance by way of mortgage, while at the same time it appears, that he was unwilling or had positively refused, to be redeemed, the case will not be excepted out of the general rule (b). It is also to be noticed, in accordance with the decision in the above mentioned case of Reeks v. Postlethwaite, that after a possession for twenty years, redemption will not be enforced on evidence of parol admissions by the mortgagee, unless such admissions be proved by two or more persons. The peculiar facility with which a perverted or fabricated statement may be imposed, when there is no possibility of contradicting or explaining it, renders the uncorroborated depositions of a single witness suspicious and most unsatisfactory. And although the veracity of the witness be granted, yet still, as the slightest mistake or failure of recollection may totally alter the effect of (a) See per Sir T. Plumer, Coop. C. C. 169. (b) Whiting v. White, 2 Cox, 290; Coop. C. C. 1. See also Reeks v. Postlethwaite, Coop. C. C. 161, pp. 171-2, and 19 Ves. 333. |