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convey the estate upon payment of the principal and interest(a).
The presumptive bar from twenty years' possession may also be rebutted by evidence of fraud or imposition, on the part of the mortgagee, in the original treaty for the loan(1). Equity, careful to protect the interests of the necessitous, will not permit any difficulties to be thrown in the
way of mortgagors, fettering or restraining the usual power of redemption. Accordingly, agreements to confine the assertion of such power to the mortgagor himself(b), or to the mortgagor and his issue (c), or to limit it to a certain number of years, at the end of which the estate is to become the absolute property of the mortgagee, and whether or not on payment of a further sum(d), are on this ground held to be altogether
(a) Price v. Copner, 1 Sim. and fact, merely a temporary option Stu. 347.
to rescind the contract reserved to (6) Jason.y. Eyres, 2 Cha. Ca. the vendor. It is evident, that 33; Newcomb v. Bonham, 1 such an agreement may be entered Vern. 7; Ord y. Smith, Sel. Cha. into without mala fides on the Ca. 9.
part of the purchaser ; and if this (c) Howard v. Harris, 1 Vern. be clearly made out, the courts 33, 190.
will sustain the purchase. Cir(d) Bowen v. Edwards, 1 Cha. cumstances, which are relied on Rep. 221 ;. Willett v. Winnell, 1 in this view, as shewing the meanVern. 488. To this rule there is ing of the parties and the fairness an exception, where it appears of the transaction, are adequacy of that a purchase of the estate was price (Floyer v. Lavington, 1 P. in the original contemplation of Wms. 268.), a particular object the parties, and that the limited to be accomplished by the purcha power to redeem was, in point of ser(Mellor v. Lees, 2 Atk. 494.),
(1) Marks v. Pell, i Johns. Ch. 594. Hamilton v. Smith, 3 Murph. 115. Prevotz v. Gratz, 6 Wheat. 481.
void. Nor, as before intimated, is the interference of the court in [*]invalidating agreements of this kind, confined to any period of time ; for, as the attempt to impose a restriction is founded in oppression, the case falls directly within the operation of another equitable principle, that time shall not prevent the redress of frauds. Hence, if, in consequence of any such stipulation, as those before mentioned, the mortgagee obtains possession of the property, no subsequent enjoyment, however long, unless with the acquiescence of the mortgagor and of claimants under him for twenty years after they become acquainted with the illegality of the contract and are freed from pecuniary embarrassment, will serve in any degree to prejudice their interests.
In some instances, the mortgagee is himself instrumental in defeating the right which would otherwise have been acquired by long undisturbed enjoyment; as where from some particular act, or a general line of conduct pursued by him in relation to the mortgaged property, it is manifest that he considers himself to hold simply in the character of mortgagee. Thus, if it appear, that within the last twenty years, the mortgagee, or an agent acting under his authority, has stated or settled an account with the mortgagor, since a principal cause for quieting a mortgagee
in his possession, viz. the difficulty to which he
and want of the usual remedies 265). The acquiescence of the given to mortgagees for enforcing vendor has been also relied on as payment of the mortgage debt serving to show, that he regarded (Goodman v. Grierson, 2 Ball and the conveyance as being absolute Beat. 274, 278; Tasburgh v. (Cotterell v. Purchase, Forr. 61). Echlin, 2 Bro. P. C. by Toml.
put in rendering accounts, does not then exist, equity will depart [*]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(6).
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 mortga
(a) Procter v. Cowper, 2 Vern. case before the M. R. in 1792, 377 ; Anon. 2 Atk. 333.
cited at the bar, 3 Ves. jun. 20, (7) Lake v. Thomas, 3 Ves. 21. Sed vide per Sir W. Grant, jun. 17; Fairfax v. Montague, 19 Ves. 333. cited by Lord Loughborough, 2 (c) Barron v. Martin, 19 Ves. Ves. jun. 84; Campbell v. Beck- 327 ; Coop. C. C. 189, S. c. ford, 4 Ves. 474. See also the
gee as subject to redemption, this will take the case out of the general rule. A recital, therefore, or any [*]incidental mention in a conveyance(a), settlement(6), 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,--thatotherwise 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).
(a) Smart v. Hunt, 4 Ves. 478, foot of the page. no; Price v. Copner, i Sim. and (d) See also Perry v. Marston, Stu. 347..
2 Bro. C. C. 399 ; and Whiting v. (6) Hansard v. Hardy, 18 Ves. White, 2 Cox Rep. 290. 455. See the facts stated in Har (e) Palmer v. Jackson, 5 Bro. dy v. Reeves, 4 Ves. 466. P. C. by Toml. 281 ; and the case
(c) Ord v. Smith, Sel. Cha. Ca. cited by Sir Jos. Jekyll, in Ord v. 9. See also 3 Atk. 314, at the Smith, Sel. Cha, Ca. 9.
The result is the same, when a mortgagee enters [*]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 the 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(6).
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
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(f), Sir T. Plumer, who went at great length into the question
(a) Conway v. Skrimpton, 5 in 2 Cox, 295; and in Coop. C.C. Bro. P. C. by Toml. 187. Consi- 165, n. The decree was afterder this case.
wards reversed by Lord Thurlow, (6) Hodle v. Healey, 1 Ves. but on another point. The quesand Bea. 536. See also Vernon v. tion before Lord Kenyon was not Bethell, 2 Eden, 110.
mentioned. (c) Perry v. Marston, 2 Bro. (d) See 2 Cox 300; and Coop. C. C. 397. The facts are fully de- C. C.6. tailed in the note to Mr. Belt's (e) See 19 Ves. 333. edition of Brown's Reports ; also () Coop. C. C. 161, 169, et seq.