insert a covenant on the part of the mortgagor for payment of the debt, to prevent the mortgagee from compelling either redemption or a foreclosure (a). So early, however, as 1687, it was decided at the Rolls (b), that if the annual value of an estate mortgaged in this manner be excessive with regard to the amount of legal interest on the sum advanced, an account might be called for notwithstanding the agreement to retain the profits instead of interest. And since that time it is said to have been further determined, that if, on an account taken, it appear that the mortgage was satisfied by perception of the profits twenty years before the bill filed, and the mortgagee has continued in possession ever since, the equitable bar adopted in analogy to the statute of limitations will secure his future enjoyment (c). To this it may be added, that if, subsequently to the making of a mortgage of the nature supposed, the grantor covenant to pay the sum advanced at a time either specifically named or to be determined afterwards by the mortgagee, the case will be reduced to that of a common mortgage, and that therefore, should default be made in payment according to the terms of the covenant, possession for twenty years after such default will conclude the right to redeem (d).

Securities for the repayment of pecuniary loans are sometimes made by a conveyance to the creditor and

(a) 1 Ves. 406; 3 Atk. 280; 3 P. Wms. 361; also Howell v. Price, Prec. Cha. 423.

(b) Fulthrope v. Foster, 1 Vern.

476.

(c) Per Lord Hardwicke, 2

Atk. 363; per Lord Eldon, 1
Mer. 125.

(d) See Hartpole v. Walsh, 5 Bro. P. C. by Toml. 267, from which this proposition has been considered deducible.

his heirs, until by perception of the rents and profits the principal and interest are discharged;-or by a conveyance in fee, with an agreement that he shall enter and hold until his demand be satisfied. Securities of this kind partake so far of the nature of Welsh mortgages, that the mortgagee cannot compel a redemption, and yet continues liable to be redeemed so long as the debt remains unpaid (a). Nevertheless, in Yates v. Hambly, Lord Hardwicke admitted, that if after the principal has been satisfied by actual payment, or by perception of the rents and profits, the mortgagee still keeps possession and is allowed to continue in possession for a period of twenty years, the statute of limitations would operate as a bar (b). A like opinion was in a modern case strongly intimated by Lord Eldon (c).

(a) Yates v. Hambly, 2 Atk. 360; Orde v. Heming, 1 Vern.

419.

(b) 2 Atk. 362-3. See also Cloberry v. Lymonds, 2 Cha. Rep. 393, where the defendant claimed

by extent under an elegit-an interest, to which Lord Hardwicke compared the estate taken by Hambly in the principal case.

(c) Fenwick v. Reed, 1 Mer. 114, 124-5.

CHAPTER XIX.

PRESUMPTIONS OF FACT CONTINUED.

Of the presumed Satisfaction of Mortgage Debts, Judgments, Warrants to confess Judgment, Decrees, Statutes, Recognisances, and Bonds.

I. IT was said by Sir W. Fortescue, M. R., in Leman v. Newnham (a), that although in common cases of debts, where principal or interest has been neither demanded nor paid for twenty years, the presumption of law is, if nothing else, that they are satisfied, yet that a different construction obtained with respect to mortgages, because a mortgagee is regarded as continuing in possession of the mortgaged property, the mortgagor being but tenant at will to him, and the mortgagor's possession therefore in legal strictness his. This doctrine was afterwards recognised and approved of by the Court of Exchequer in Toplis v. Baker (b). But in neither of these cases was the point necessary to be determined; there were in each of them other circumstances which repelled the presumption of satisfaction.

On the other hand, in the case of Trash v.White (c), where the doctrine of Sir W. Fortescue was cited at

(a) 1 Ves. 51.
(b) 2 Cox, 118.

(c) 3 Bro. C. C. 291.

the bar, Lord Thurlow said, he had always understood, that where it was clear no interest had been paid for twenty years, a presumption did arise that the principal had been discharged. And on a late occasion (a), when the point was again agitated, though a decision of it was not necessary, Sir T. Plumer, M. R., after noticing the cases first mentioned, and the principle there laid down, that as the mortgagor was merely tenant at will to his mortgagee he could not have an adverse possession, and consequently that the mortgagee might assert his title at any distance of time, proceeded thus: "I cannot accede to the doctrine, that no length of time will operate against a mortgagee who has been out of possession without claim or acknowledgment. The argument from there being a tenancy at will, arises from a mere fiction; for there is no actual tenancy, no demise either express or implied. The mortgagor has not even the rights of a tenant at will; he may be turned out of possession without notice, and is not entitled to the emblements. It is only quodam modo a tenancy at will, as Lord Mansfield says in one of the cases (b). We cannot push it to that extent, reasoning on the supposed relation of landlord and tenant, which is not founded in fact. The relation of mortgagor and mortgagee is peculiar : in a court of equity the former is considered as the owner; and that is the nature of the contract between them; the tacit agreement is, that he is to be the owner if he pays. Then, what is to be the effect of one person's continuing for twenty years in pos

(a) Christophers v. Sparke, 2 Jac. and Walk. 223, 234.

(b) Moss v. Gallimore, Doug.

269.

session of the estate of another, who does nothing to make good his title, and to keep alive the relation of morgagor and mortgagee? The difficulty I feel is, that if twenty years' possession, without claim on the part of the mortgagee, will not operate as a defence against him, I do not see how any period of time, however long, can bar him. If the fiction of the tenancy at will is an answer to the objection after twenty years, why will it not be an answer after any other time? There would be no possibility of stopping. With respect to the mortgagor, it is clear that his equity is shut out by the mortgagee being in possession for twenty years without acknowledgment; then why should this not be reciprocal? Why should it be necessary for the relation to be kept alive in the one case, and not in the other? For these reasons, though I do not give a positive opinion, I cannot agree to the doctrine intimated in the cases alluded to."

This argument frees the question from the legal technicalities which biassed the opinion of the court in the cases of Leman v. Newnham and Toplis v. Baker; and it appears to be founded in just principles and sound sense. Showing that the relation of tenant at will, which for some purposes subsists between a mortgagee in possession and the mortgagor, is not universal and must not be carried out into all the particulars of that relation, it reduces the case of debts secured by mortgage to the condition of other long neglected demands, and thus rids the law of a mischievous anomaly. The reasons stated by the late Master of the Rolls in favour of a presumptive bar to