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[*]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
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 afier twenty years, there shall be no parol evidence for a redemption. A mortgagee may have amused his mortgagor every day with promises of settling. Supposeeven 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."
[*]lt 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 acknowl. edged 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(6).
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, Reeks v. Postlethwaite, Coop. C. Coop. C. C. 169.
C. 161, pp. 171-2, and 19 Ves. (6) Whiting v. White, 2 Cox, 333. 290; Coop. C. C. 1. See also
[*]the mortgagee's declarations, the danger with this supposition is but little diminished.
Another case, in which the right acquired by long possession cannot be maintained, is where the mortgagee, in his answer to a bill for redemption, submits to be redeemed(a). After thus distinctly recognising the mortgagor's title and acquiescing in his demand, to retract must of course be nugatory.
From the decision in Rakestraw v. Brewer(b), it has been inferred and frequently laid down as a general rule, and in a late case in Ireland this rule was explicitly acknowledged and acted on(c), that if a mortgagor continues in possession of part of the mortgaged premises, it will preserve his right to redeem the whole. In the case first mentioned, it
appeared, that one Holford, in 1687, mortgaged a set of chambers in Gray's-Inn, to a person, who in 1700 assigned to the defendant. During the latter year, under an order of the Bench to deliver possession to the mortgagee, the defendant entered into part of the premises; but the remainder the mortgagor continued to occupy until 1708, when he died, leaving the plaintiff, then an infant, his personal representative. From that time the mortgagee had possession of the whole set of chambers. A bill was brought to redeem in 1726; and a decree for that purpose
obtained at the Rolls was afterwards affirmed by Lord Chancellor King.
His [*]Lordship said, that no
(a) Proctor v. Oates, 2 Atk. 511 ; Mose. 189, S. C. 140.
(c) Burke v. Lynch, 2 Ball and (6) Sel. Cha. Ca. 55 ; 2 P.Wms. Be. 426.
thing was more clear, or a more established rule, than that if mortgagor was in possession of any part, he should be admitted to redeem the whole; for part he might as being in possession thereof, but that part he could not, separately from the rest ; and therefore he should redeem the whole. That in the present case the mortgagor was in possession of part till 1708; till 1714 the plaintiff was an infant; and from that time it did not amount to twenty years.
This decision under the peculiar circumstances appears to be correct. The property, a set of chambers, could be in point of extent on ly small; and from the usual mode in which chambers are constructed, it may reasonably be supposed, that each part was essential to the conveniency of the whole. Hence, with some fairness it might be inferred, that the very motive for the mortgagor's continuing in possession of part, was to prevent any absolute right being acquired by the mortgagee. But there was this additional circumstance, that the mortgagee entered into possession of the remaining part of the chambers within twenty years before the bill was filed. Now the right to enter could only be ascribed to his title as mortgagee : an implied admission was therefore made, that he held generally in that character; and then the case fell within the common principle, that an acknowledgment within twenty years will sustain an equity of redemption.
The determination in question, it should therefore seem, does not by any means warrant the broad proposition [*]drawn from it. Lord King, it is true, is reported to have expressed himself very generally.
But his dictum does not amount to a decision, and was most likely uttered with especial reference to the circumstances before noticed, which would make it quite unobjectionable. But whether or not that be so, those circumstances, it is conceived, should have been duly weighed, before any principle of universal application had been drawn from the decision. For with a very slight variation of circumstances the general inexpediency of such a rule becomes manifest. If we suppose, for example, the case of a mortgaged estate, which in its nature is easily divisible, and of which a part sufficient to cover the loan, but not so connected with as to obstruct or diminish the full and exclusive enjoyment of the remainder, is relinquished to the mortgagee-why may not an abandonment of the equity of redemption as to such part be as readily presumed as if the whole estate had been delivered up? It is said that the divided occupation between the mortgagor and mortgagee shows an agreement, that the right to redeem should be perpetual, because as the mortgagor's possession of part indisputably keeps the title so far open, and as a redemption when sued for could not be granted as to that part only, and denied as to the rest, the decree must of necessity embrace the whole. But this reasoning assumes, either that the mortgagee has still a beneficial interest in the portion of the estate which is not in his possession, in other words, that he has an ascertained subsisting demand, for which the mortgagor continues liable; or that, supposing his interest in the unoccupied [*]part of the estate to be merely that of a satisfied mortgagee, the consequent admission that the title to the other part originated in a mortgage is a sufficient ground to decree redemption. The just and