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tute, that where a mortgagee's entry into possession is made when the mortgagor, or a claimant from him, is not under disability, and a subsequent disability arises, it shall not prevent the time running against the person having the right to redeem ; so that if the mortgagee afterwards goes abroad(a), or, being a feme sole marries(b), or if the equity of redemption descends to an infant heir(c), in none of these cases will the interest of the party be saved beyond the usual period.
On the common principle of equity following the law, as persons claiming in renainder or reversion are not barred by the statute of limitations till after the expiration of twenty years from the time of such remainder or reversion falling into possession, it has been urged that the same rule should be applied to successive limitations of an equity of redemption. This was done by Lord Manners in a modern case in Ireland, where the person coming to redeem was a remote remainder-man after previous limitations in tail(d). [*]But the contrary, it should seem, may be
(a) Aggas v. Pickerell, 3 Atk. 1 M.Clel. and You. 321, a similar 225.
decision was made by the Court (6) Anon. 2 Atk. 333.
of Exchequer (absente Alexander (c) Floyd v. Mansell, Gilb. Eq. C. B.) But the authority of this Ca. 185; Knowles v. Spence, 1 decision seems most questionable. Eq. Abr. 315; Mose. 225, S. C. ; It evidently proceeded on an erroStone v. Byrne, 5 Bro. P. C., by neous principle. The learned BaToml. 209 ; St. John. v. Turner, rons considered, that twenty years' 2 Vern. 419.
possession by a mortgagee, instead (d) Blake v. Foster, 2 Ball and of forming a presumptive bar to Be. 565, 575, et seq. In the re- the equity of redemption, as it has cent case of Cowne v. Douglass, been held again and again to do,
regarded as now the settled law on the subject. For on the case referred to coming before the House of Lords(a), it was adjudged, that there could be no redemption after twenty years, in whatsoever way the estate might have been settled. And in an earlier case before Sir W. Grant, M. R., where the party claiming was entitled in remainder immediately after an estate for life, during the existence of which the mortgagee had entered, a similar decision was made(b). The ground of these resolutions is plain; namely, the mischievous tendency of an opposite rule, -which would obviously be to introduce much of the evil apprehended from an unlimited power to redeem generally. But besides this, the principle might be even designedly abused to defeat the previous right of the mortgagee; and for that purpose, it would merely be necessary to make a settlement of the property. Another reason which offers, is the want of resemblance between the cases under consideration in the following important article, that whereas a remainder-man of a legal estate cannot bring his formedon until the remainder falls into possession, a remainder-man or reversioner of an equity of redemption has a present right to redeem,—which he may enforce by bringing a bill, when the persons who are entitled under the prior limitations (being [*]of necessity made parties) will be put to their election to redeem or not, and on their refusal the re
affords merely the presumption of not yet reported. See also Mara release or conveyance of that quis of Cholmondeley v. Lord equity from the mortgagor. See Clinton, 2 Jac. and Walk. 1. 1 Anst. 143.
(6) Harrison v. Hollins, 1 Sim. (a) Sess. 1823. The case is and Stu. 471.
mainder-man will be let in(a). This right of redemption, it is contended, the parties entitled in remainder orreversion must enforce, if they would save the equity.
Other arguments in support of the above decision are deducible from the rule, that a decree of foreclosure against tenant in tail binds both the issue in tail and the persons in remainder, though the latter be not parties to the suit (b); and that the ordinary time for redemption will not be enlarged in favour even of creditors--a class of persons who are generally so highly regarded and favoured (c). There ought to be a time, say the courts, when mortgagees may become certain of their interest either of land or money ; they are the parties to be first considered; and with respect to decrees of foreclosure against tenants in tail, if such were not binding upon claimants of future interests, and were open to impeachment by every contingent remainder-man, there might in some cases never be an absolute foreclosure; the account would be endless ; and the general consequence would be, that no person would lend his money upon mortgage.
It is worthy of notice, that previously to Sir W. Grant's determination, that where a mortgagee enters during the life-time of tenant for life, the persons in remainder will be barred of their right to redeem, after [*]twenty years from such entry, it had been ad
(a) Aynsly v. Ree, Dick. 249. Cha. Ca. 217, 220; Reynoldson See also per Eyre, C. B., 1 Anstr. v. Perkins, Amb. 564. 138.
(c) Woollaston's case, 2 Cha. (6) Roscarrick v. Barton, 1 Ca. 62, cited.
judged on grounds precisely accordant with the above observations, that the existence of an estate by the curtesy was insufficient to prevent the presumptive bar which arises from long possession. Lord Hardwicke's remark on the occasion alluded to was, that there would be no bounds to redemption if the excuse of a curtesy estate should prevail ; mortgagees would never be quieted in their possession ; it was of no consequence to them, to whom the right of redemption belonged; if the persons entitled did not make use of their right, it was only fitting they should be barred(a).
From the case last mentioned it follows as a general rule, that to preserve a right of redemption where the person entitled in possession is tenant by the curtesy, it is incumbent notwithstanding on the heir of the deceased wife to urge his claim within the usual time. But there is an exception to this rule. For, if the mortgagee's possession be attributable to a title under the husband, independently of that as mortgagee, so that he becomes the party as well to pay, as to receive the interest of the mortgage debt, his enjoyment during the husband's life-time, of whatever length it be, will not prejudice the right of the heir.
Thus in Corbett v. Barker (b): Mr. and Mrs. Corbett, being seised in fee of an estate in her right, mortgaged it by demise and fine to one Carlisle for 1000 years. The mortgage was afterwards transferred [*]to the defendant; and Mr. and Mrs. Corbett,
(a) Anon. 2 Atk. 333. See al- sed vide Fleetwood v. TempleSo 1 Anst. 138.
man, Barnardist. Cha. Rep. 187. (6) 1 Anstr. 138; 3 Ib. 755.
by deed, for a valuable consideration, conveyed to him their equity of redemption and the reversion in fee. Mrs. Corbett died in 1741, and her husband in 1785. In 1792, the plaintiff, who was their son, and also heir to his mother, brought his bill for a redemption. At the first hearing the defendant's long enjoyment was held by the Court of Exchequer to be a bar to the demand, and the bill was accordingly dismissed; but, upon a re-hearing, that decree was reversed. Macdonald, C. B., in delivering judgment, said, “ By attending to the different rights of the defendant, it appears, that he stood in the place of the tenant by the curtesy of the equity of redemption; for he claims to hold under him by the last conveyance, and immediately upon taking it he entered into possession. In th at character it was his duty to keep down the interest of the mortgage: as mortgagee he was to receive the interest: uniting these two characters, he is to be considered as having supported the different rights, and discharged the duties of each. In the general case, a presumption arises from no payment of the surplus rents being made, nor account delivered for so long a period of time as twenty years : here the presumption cannot arise, because it was the same person to pay and to receive. does not therefore fall within the general rule."
From a recent decision by Sir J. Leach, V. C., it further appears, that under circumstances of the nature last described, the right to redeem does not terminate until the end of twenty years from the time of the [*]husband's death. So that, till that period has elapsed, the heir of the wife, or should the wife survive, she herself, may compel the mortgagee to re