[*]CHAPTER XVIII.

PRESUMPTIONS OF FACT CONTINUED.

Of the presumptive Bar to Equities of Redemption.

ON breach of the condition or proviso, which is contained in mortgage deeds for payment of the money lent, the estate of the mortgagee becomes absolute at law. To mitigate the severity of this rule, it was laid down as a maxim in our courts of equity at a very early period,-Once a mortgage always a mortgage; and it was resolved, that estates which had been pledged as securities for money, might be redeemed at any time on payment of the principal sums secured and interest, although the period originally fixed for payment had passed. But it is obvious, that a strict adherence to this rule of equity, unless it received some concurrent qualification, would produce effects as injurious as those which it was intended to prevent. If the power of redemption were under no circumstances limited in point of time, much litigation, and in some cases real injustice, would ensue. It is therefore now held, by analogy to the statute of limitations (a), that twenty years' possession by a mortgagee, without account or acknow

(a) 21 Jac. I. c. 16.

ledgment of an existing right to redeem, forms a presumptive bar to the equity of the mortgagor (a) (1).

[*]The principal reason for thus limiting the power to redeem, is the mischief which in so many ways would arise from the assertion of long neglected claims-a mischief which it has been the constant endeavour of courts both of law and equity to prevent(2). A presumption is therefore entertained,

(a) Pearson v. Pulley, 1 Cha. Ca. 102; Clapham v. Bowyer, 1 Cha. Rep. 206; White v. Ewer, 2 Vent. 340; Jenner v. Tracey, 3 P. Wms. 287. n. Knowles v. Spence, 1 Eq. Abr. 315; Heaton v. Hugell, 1 Barnardist. K. B. Rep. 272; Aggas v. Pickerell, 3 Atk. 225; Anon. Ib. 313; Foster v. Hodgson, 19 Ves. 184; Hoodle v. Healey, 1 Ves. and Be. 539. See also Roscarrick v. Barton, 1

Cha. Ca. 217; Isham v. Cole, 1 Cha. Rep. 127; Saunders v. Hord, Ib. 184; Floyd v. Mansell, Gilb. Eq. Rep. 185; Rakestraw v. Bruyer, Mose. 191; Frazer v. Moor, Bunb. 54; Ord v. Smith, Sel. Cha. Ca. 9; Fleetwood v. Templeman, Barnardist. Cha. Rep. 187; Beckford v. Close, 4 Ves. 476, cited; Barron v. Martin, 19 Ves. 327; Corbett v. Barker, 1 Anst. 138, 143.

Collins v.

(1) Moor v. Cuble, 1 John. Ch. 385. Grant et al. v. Duane, 9 Johns. Rep. 591. Demarest et ux. v. Wynkoop et al. 3 Johns. Ch. 129. Hughes et al. v. Edwards et ux. 9 Wheat. 489. Torrey, 3 Johns. 386. Harkey v. Powell, 1 Hawkes, 17. Shepherd v. Murdock, 1 Murphy, 218. Lamar v. Jones, 3 Har. & M Hen. 328. Inches v. Leonard, 12 Mass. 300. Pomeroy v. Winship, 12 Mass. 520. Jackson v. Pratt, 10 Johns. 381. 140. Turnstall v. M'Lelland, Hard. 519.

pany, 1 Paige, 48.

Perine v. Dunn, 4 John. Ch.

Slee v. Manhattan Com

Ward v. Reeder, 2 Har.

(2) Isby v. M'Crae, 4 Dessaus, 432. and M'Hen. 154. Brown v. Griffiths, 6 Munf. 450. Lewis v. Bacon,

3 Har. & M'Hen. 89. Murray v. Coster, 5 Johns. Ch. 522. v. Hudson, 3 Johns. 375. Jackson v. Todd, 6 Johns. 257.

Klock

Jackson

v. Harder, 4 Johns. 202. Jackson v. Pratt, 10 Johns. 381. v. Wood, 12 Johns. 242.

Jackson

that the mortgagor has deserted or released his equity(a). The neglect to pursue a right of redemption, as Lord Commissioner Gilbert observed (b), is evidence of a dereliction of all property in the pledge. Men are always sedulous in guarding their interests. If the right be worth pursuing, it is natural to suppose that the mortgagor would follow it-at least within a space of twenty years. Another argument is furnished by the justice of the principle. From long unmolested perception of the rents and profits, a mortgagee is led to conclude, that the estate is abandoned to him in satisfaction of his demand. He is thence induced to discontinue regular accounts of his receipts and disbursements, and treating the property as his own, to expend labour, time, and money, in improving it. Liability to the future claim of the mortgagor would place him in a situation [*]worse than that of an agent or bailiff, for in addition to the difficulty, perhaps impossibility, of preparing and rendering proper accounts, he would be deprived not only of the benefit to arise from his care and industry, but also of all adequate recompense.

In order to determine rights of redemption the whole of the twenty years' possession must take place subsequently to the time of the forfeiture occurring at law possession for twenty years from the date of the mortgage deed only, will not be enough, for until the forfeiture, the estate in the hands of the mortgagee is strictly a pledge. It may be observed

(a) Stone v. Byrne, 5 Bro. P. C., by Toml. 209. See also 3

(b) In Ord v. Smith, Sel. Cha. Ca. 11.

Anst. 759.

that the same rules which govern the right to redeem in mortgages of real estate, apply also to mortgages of personal property (a)(1).

To prevent an unexplained possession for twenty years becoming a presumptive bar to the mortgagor's equitable title, it is necessary in ordinary cases, that a bill for redemption should be filed before that period has elapsed, and the suit be prosecuted to a decree. But although such a decree be obtained, the title of the mortgagor will not be thereby rendered permanently secure; it must still be acted upon within a reasonable time. If the right be neglected for a further space of twenty years, the case will be the same as if no decree had been obtained (b).

Nor is the single circumstance of a suit having been [*]begun within the proper time alone sufficient to preserve the equity of redemption: unless the mortgagee by his answer should admit the claim, the suit must be regularly proceeded in and prosecuted to a decree. Should the answer deny the right, and no further steps be taken before the twenty years have elapsed, the general rule will prevail (c). Much less is a mere demand, without process or acknowledgment, effectual to avoid the force of the presumptive bar(d).

In their decisions on this subject, the courts observe a further analogy to the statute of limitations. By the second section of that statute it is provided, that rights of entry which first accrue to persons during a state of infancy, coverture, absence beyond sea, &c., may be enforced at any time within ten years after such impediment shall have been removed, notwithstanding the expiration of the original twenty years. So it is held in equity, that where the commencement of the twenty years' possession takes place during the infancy, coverture, &c. of the party entitled to redeem, his right shall not be barred until ten years after the removal of the particular incapacity(a)(1).

[*]It has likewise been decided, in conformity with adjudications at law on the saving clauses of the sta

(a) Procter v. Cowper, 2 Vern. 377; Cornel v. Sykes, 1 Cha. Rep. 193. See also per the Lord Keeper in White v. Ewer, 2 Vent. 340; per Lord King in Jenner v. Tracey, 3 P. Wms. 287, n.; per Lord Talbot in Belch v. Harvey, Ib.; per Lord Eldon in Foster v. Hodgson, 19 Ves. 184; and per Sir T. Plumer in Hodle v. Healey, 1 Ves. and Be. 539.

According to the late cases of Doe v. Jesson, 6 East, 80, and Cotterell v. Dutton, 4 Taunt. 826, the ten additional years are not to be so taken as to enable a person,

who is under disability when a right accrues, to enforce his claim at any time within thirty years afterwards, whether the incapacity should or should not speedily end; but, so only, that on the termination of the disability, or series of disabilities, the person then entitled shall have the full space of ten years to prosecute his right. The ten years begin to run as soon as the disability ceases, whether that happen before or after the end of the twenty years from the time of the right accruing.

(1) Demarest v. Wyncoop, 3 Johns. Ch. 129. Hall v. Vandegrift,

3 Binn. 374.