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true inference, it is submitted, which results from the fact of a larger quantity of land being comprised in a mortgage than what is delivered into the hands of the mortgagee, is merely this, that the mortgagee, satisfied with part for his security, abandons his claim or right in the remainder to the use of the mortgagor, absolutely. The mortgagee's situation as to the lands in his possession being then precisely the same as that of any other mortgagee in possession, the same arguments are applicable to show that he is entitled to equal rights and advantages. A contrary rule must inevitably lead to the consequence in general so anxiously guarded against, viz. the difficulty and perplexity occasioned to mortgagees in being called upon to state and prove old and long accounts.
This view of the subject seems to be favoured by a case before Sir Thomas Clarke, M. R., which was cited by Lord Loughborough in Lake v. Thomas(a). A mortgaged estate, of which the mortgagor had been very long out of possession, came into two different hands : the occupier of one part having kept accounts as mortgagee, a redemption as to such part was decreed on that ground; but with regard to the other part no accounts having been kept, the bill so far as related to it was dismissed.
[*]It remains to be mentioned, that long undisturbed enjoyment by a mortgagee may sometimes be accounted for on the ground of an agreement between the parties. : Thus, if it be stipulated, either at the time of the mortgagee's entering into possession or
(a) 3 Ves jun. 22.
afterwards, that the right to redeem should not be considered as closed until the end of a certain number of years, a bill for redemption may be brought, as it seems, at any time within twenty years from the termination of the specified period. And accordingly, in White v. Pigion(a), where a bill to redeem a mortgage was demurred to, because, after a possession of forty-one years, a promise having been made that the mortgagor was to be at liberty to redeem for twenty-seven years, and fourteen years only having elapsed since the expiration of that time, the demurrer was disallowed.
There is a species of mortgage, called from its having been formerly the usual mode of making mortgages in Wales, a Welsh mortgage, which differs from the common security in that the estate is redeemable at any time on payment of the principal money (6), and that the mortgagee being let into immediate possession receives the profits in lieu of interest(c). The consequence, generally speaking, of a mortgage being thus framed is to preserve to the equitable owner, however long the mortgagee be in possession, his right to redeem(d), and as it is customary not to [*]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(e). So early, however, as 1687, it was decided at the Rolls(f),
(a) Toth. 232.
P. Wms. 361; also Howell v. (1) 1 Vern. 77 ; 2 Atk. 363. Price, Prec. Cha. 423. (c) i Vern. 395, 477.
() Fulthrope v. Foster, 1 Vern. (d) 1 Ves. 406; 2 Atk. 363. 476. (c) i Ves. 406; 3 Atk. 280; 3
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(a). 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 ac. cording to the terms of the covenant, possession for twenty years after such default will conclude the right to redeem(b).
Securities for the repayment of pecuniary loans are sometimes made by a conveyance to the creditor and [*]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) Per Lord Hardwicke, 2 Bro. P. C. by Toml. 267, from Atk. 363; per Lord Eldon, 1 which this proposition has been Mer. 125.
considered deducible. (6) See Hartpole v. Walsh, 5
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(6). A like opinion was in a modern case strongly intimated by Lord Eldon(c).
(a) Yates v. Hambly, 2 Atk. by extent under an elegit--an in360 ; Orde v. Heming, 1 Vern. terest to which Lord Hardwicke 419.
estate taken by (6)2 Atk. 362-3. See also Hambly in the principal case. Cloberry v. Lymonds, 2 Cha. Rep. (c) Fenwick v. Reed, 1 Mer. 393, where the defendant claimed 114, 124-5.
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 Exehequer 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(1).
(a) 1 Ves. 51.
(6) 2 Cox, 118.
(1) Moore v. Cable, 1 Johns. Ch. 385. Marks v. Pell, 1 Johns. Ch. 594. Hinton v. Fox, 3 Littell, 381. Giles v. Baremore, 5 Johns. Ch. 550. Livingston v. Livingston, 4 Johns. Ch. 287.