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On the other hand, in the case of Trash v. White(a), where the doctrine of Sir W. Fortescue was cited at [*]the bar, Lord Thurlow said, he had always understood, that where it was clear no interest had been paid for twenty years, a presumption did arise that the principal had been discharged. And on a late occasion(6), when the point was again agitated, though a decision of it was not necessary, Sir T. Plumer, M, R., after noticing the cases first mentioned, and the principle there laid down, that as the mortgagor was merely tenant at will to his mortgagee he could not have an adverse possession, and consequently that the mortgagee might assert his title at any distance of time, proceeded thus ; “I cannot accede to the doctrine, that no length of time will operate against a mortgagee who has been out of possession without claim or acknowledgment. The argument from there being a tenancy at will, arises from a mere fiction ; for there is no actual tenancy, no demise either express or implied. The mortgagor has not even the rights of a tenant at will; he may be turned out of possession without notice, and is not entitled to the emblements. It is only quodam modo a tenancy at will, as Lord Mansfield says in one of the cases(c). We cannot push it to that extent, -reasoning on the supposed relation of landlord and tenant, which is not founded in fact. The relation of mortgagor and mortgagee is peculiar : in a court of equity the former is considered as the owner; and that is the nature of the contract between them; the tacit agreement is, that he is to be the owner if he
(a) 3 Bro.C.C. 291.
(c) Moss v. Gallimore, Doug. (6) Christophers v. Sparke, 2 269. Jac. and Walk, 223, 234.
Then, what is to be the effect of one person's continuing for twenty years in possession [*]of the estate of another, who does nothing to make good his title, and to keep alive the relation of mortgagor and mortgagee? The difficulty I feel is, that if twenty years' possession, without claim on the part of the mortgagee, will not operate as a defence against him, I do not see how any period of time, however long, can bar him. If the fiction of the tenancy at will is an answer to the objection after twenty-years, why will it not be an answer after any other time? There would be no possibility of stopping. With respect to the mortgagor, it is clear that his equity is shut out by the mortgagee being in possession for twenty years without acknowledgment; then why should this not be reciprocal? Why should it be necessary for the relation to be kept alive in the one case, and not in the other ? For these reasons, though I do not give a positive opinion, I cannot agree to the doctrine intimated in the cases alluded to."
This argument frees the question from the legal technicalities which biassed the opinion of the court in the cases of Leman v. Newnham and Toplis v. Baker; and it appears to be founded in just principles and sound sense. Showing that the relation of tenant at will, which for some purposes subsists between a mortgagee in possession and the mortagor, is not universal and must not be carried out into all the particulars of that relation, it reduces the case of debts secured by mortgage to the condition of other long neglected demands, and thus rids the law of a mischievous anomaly. The reasons stated by the late Master of the Rolls in favour of a presumptive bar to [*]a mortgage debt, where there has been no
acknowledgment of it for twenty years, are indeed so forcible, that the dictum of Sir W. Fortescue, unsupported as it is by any positive decision, and being directly opposed to the opinion of Lord Thurlow, may now be regarded as of no authority(1).
There are, however, some decided cases (most of them it is true of ancient date), in which long unclaimed mortgage debts were in a strict sense presumed to have been satisfied. Thus, in Sibson v. Fletcher(a), a mortgage was made to the defendant in 1616, and in 1623, the mortgagor, who till then continued to occupy the land, sold it to the plaintiff; on a bill filed by the latter ten years afterwards to be quieted in his enjoyment against the defendant, who then first set up his title as mortgagee, the court decreed according to the prayer of the bill, and ordered the mortgage deed to be delivered up to be cancelled. The ground of the determination was, that as the defendant did not make any claim, nor give notice of his mortgage at the time of the plaintiff's purchase though he saw the possession altered, and as the estate for seventeen years had been in the immediate hands of the mortgagor and of the plaintiff who purchased from him, there was every reason to presume that the mortgage money had been paid.
So, where the claimants under a purchase made sixteen years before, were disturbed in their posses
(a) 1 Cha. Rep. 59.
See also Hales v. Hales, ib. 105.
(1) Hughes et al. v. Edwards and wife, 9 Wheat. 489. Demarest et ux. v. Wyncoop et al. 3 Johns. Ch. 129.
sion by [*]a person who set up a title as mortgagee under a former owner, and relief against the encumbrance was sought in equity, the court, for want of direct proof to show that the mortgage then remained unsatisfied, decreed the deed to be delivered up and cancelled(a).
And again, in the late case of Blewitt v. Thomas(6), where, to a bill setting up an old mortgage, and stating an account settled twenty-five years before, the defendant pleaded forty years' possession in himself and his ancestors, without payment of interest or making any admissions of the debt, Lord Loughborough allowed the plea, and said it was a complete answer to the demand.
From these cases, then, it appears that the court has on certain occasions conceded the point, that by a mortgage being allowed to lie dormant for a considerable number of years, a presumption is afforded of its previous satisfaction. It is true, that in none of those cases was there any particular period alluded to as serving to establish the supposition; for although in Sibson v. Fletcher, and Abdy v. Loveday, sixteen or seventeen years were held to defeat the mortgagee's demand, yet in both instances much reliance seems to have been placed on the fact of there having been a sale of the estate since the mortgage was made, and of the mortgagee having failed to give notice of his right to the purchaser: but as the general principle was admitted, the limits of its applica
(6). 2 Ves. jun. 669.
(a) Abdy v. Loveday, Finch's Rep. 250.
tion it will not, as is conceived, be difficult to ascertain. Twenty years have [*]long been held a convenient time for limiting the right to enforce old bonds and other similar securities, on the assumption that laches for so long a period could proceed only from want of right; and the same reasons obviously apply for adopting the like measure of time as a limitation to claims under old mortgages.
The presumption of satisfaction is of course liable to be repelled by evidence. And it seems that for this purpose
circumstances evincing the improbability of a discharge will be enough. Thus, Sir W. Fortescue considered the presumption of payment to be sufficiently answered, by showing that the mortgage debt belonged to the mother of the owner of the estate encumbered, and that she had not permitted the title deeds to be delivered to him. Her intention, he argued, was thereby manifested " not to demand
payment during her son's life-time; and yet not to part with her whole right, but to keep it in her own power"(a).
So where interest on a mortgage had not been paid for about twenty-three years, but it appeared that the estate at the time of the mortgage being made was in reversion, and did not come into the mortgagor's possession till within two years before the bill was filed; the Court of Exchequer held the forbearance of the mortgagee to be accounted for (to at least a certain extent) by the unproductiveness of the security, and by that circumstance connected with an
(a) Leman v. Newnham, 1 Ves. 51.