Ashton v. Milne, 6 Sim. 379.

decree, notwithstanding the very able and ingenious argument of Sir Samuel Romilly in support of it, was reversed by Macdonald C. B., on the ground, that, during the life of the tenant by curtesy, the mortgagee fulfilled not only his own character, but that of mortgagor; and that it was not until the death of the tenant by curtesy that his possession became adverse. “In the general case," observed his Lordship, "a presumption arises from no payment of the surplus rents being made, nor account delivered for so long a period as twenty years; here the presumption cannot arise, because it was the same person to pay and to receive: the case does not, therefore, fall within the general rule.” In a recent case the Vice-Chancellor expressed his opinion "that the better decision was reversed;" but it has been said very properly by Lord Langdale, that his Honor does not appear to have "made any distinction between the cases, in which the possession of the mortgagee is referred to his mortgage title only, and the cases in which the possession is referred to, and depends upon, some other title 2." And in Ravald v. Russell 3, Sir William Alexander C. B. concludes a very elaborate and instructive argument on this question by saying "I think the case of Corbett v. Barker is exactly in point. I could not overrule it without a clear opinion that it is erroneous. It seems to me that the weight of reasoning is with it." In a case before Sir John Leach 4, the husband and wife being jointly entitled to an equity of redemption in fee, conveyed it by deed without fine to the mortgagee: the wife survived; and it appears to have been the opinion of the court-though it was not necessary to decide the point, as, even assuming the possession to be referred to the mortgage title, the bill was filed within twenty years that the wife, or her heir, might redeem at any time within twenty years from the husband's death; the possession 32 Sim. & Stu. during his life being referred to the mortgagee's title, as purchaser of the equity of redemption. The same conclusion seems to follow from the decision in Reeve v. Hicks 5, and is adopted by Lord Reed, 6 Madd.8. Langdale, in Raffety v. King 6, upon a careful survey of the authorities, which, with the single exception of the case before

2 Raffety v. King, 1 Kee. 616.

$ 1 You. 22.

4 Price v. Copner, 1 Sim. & Stu. 347.

403.

61 Kee. 601.

7 Fenwick v.

$ 2 Cox, 294.

9 Hansard v.

Hardy, 18 Ves. Sir L. Shadwell, all concur in supporting it.

455.

10 Smart v. Hunt, 4 Ves. 478, n. (a).

11 Proctor v. Oates, 2 Atk. 140.

The acts by which, previous to the statute 3 & 4 W. 4, c. 27, the existence of an equity of redemption might have been recog nised, are very various, and the charge of proving them laid on the mortgagor. Admissions in letters7, settlements, surrenders, assignments 10, answers in Chancery11,—a devise of “all my

EFFECT OF TIME AS A BAR.

Anon. 3 Atk.

314.
2 Trash v.

C. C. 289. 3 Vernon v.

114.

4 2 Atk. 533.

5 Hodle v.

mortgaged estates," or in words of the like import1, -a demand of interest 2,—an account kept3, or settled4; but the mere demand of an account without process or acknowledgment5, or an account White, 3 Bro. stated without the authority of the mortgagee6, or a devise in the words above mentioned after a foreclosure or conveyance of the Bethell, 2 Eden, equity of redemption, were not sufficient to prevent the twenty years from running7. So also recitals in deeds between the mortgagor and mortgagee would have kept alive the equity of redemp- Healy, 1 Ves. tions, or recitals even in transactions between third persons, to which the mortgagor and his heirs were not parties 9. dence by a party, who was once a mortgagee, that he had no other title, or that he still retained that character, was also held to be sufficient to keep the equity of redemption alive for twenty years from the time such admission was made; it was necessary, indeed, that such evidence should "be clear, unequivocal, and Sch. & Lef. shew a deliberate intention of giving a redemption 10."

& Bea. 540. 6 Baron v.

Parol evi- Martin, Coop.

192.

7 Whiting v. White, Coop. 1; 2 Cox, 293.

8 Carew v. Johnstone, 2

295.

9 Hansard v. Hardy, 18 Ves. 455.

10 Whiting v. White, 2 Cox,

90; Reeks v.

Hence, although a period of twenty years had elapsed without payment of interest or any claim from the mortgagee, or the mortgagee had been in possession for a like period without any payment, promise, or acknowledgment from the mortgagor, to shew that the mortgage was still subsisting; yet, in the former Postlethwaite, Coop. 161. case, if it could be shewn, that, in point of fact, the money had not been paid, or, in the latter, there could be produced evidence of any acknowledgment in writing or by parol to the mortgagee, or to a stranger, or any memorandum or account found among the papers of the mortgagee, admitting or evidencing that he held in that character, this was an answer to either party grounding his title on the fact of undisturbed possession and enjoyment during this period. Hence, all titles derived through a mortgagor in the absence of a re-conveyance and proper legal evidence of payment of the money secured by the mortgage,- —or through a mortgagee in the absence of an express release of the equity of redemption,were unmarketable for a period long beyond the time when there was any real ground for supposing that the title would be questioned on these grounds.

Such a state of the law was, in the highest degree, inconvenient. In pursuance of the recommendation of the Real Property Commissioners 11, it has now been put upon a satisfactory foot-1st. Rep. p. ing by statute 3 & 4 Will. 4, c. 27, by which it is enacted,

50.

66

66

"that when a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claim'ing through him, shall not bring a suit to redeem the mortgage, but within twenty years next after the time at which the "mortgagee obtained such possession or receipt, unless, in the "meantime, an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor, or some person claiming his estate, or to the agent "of such mortgagor or person in writing, signed by the mortgagee, or the person claiming through him; and, in such case, no such suit shall be brought but within twenty years next "after the time at which such acknowledgment, or the last of "such acknowledgments, if more than one, was given: and when there shall be more than one mortgagor, or more than one "person claiming through the mortgagor or mortgagors, such " acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had "been given to all such mortgagors or persons; but, where there "shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, "such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or "parties signing as aforesaid, and the person or persons claiming

66

any part of the mortgage-money, or land, or rent, by, from, or "under him or them, and any person or persons entitled to any "estate or estates, interest or interests, to take effect after, or in "defeasance of, his or their estate or estates, interest or in"terests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage, as against the person or persons entitled to any other undivided or divided part of "the money, or land, or rent; and, where such of the mort

gagees, or persons aforesaid, as shall have given such acknow"ledgment, shall be entitled to a divided part of the land or rent

comprised in the mortgage, or some estate or interest therein, "and not to any ascertained part of the mortgage money, the 'mortgagor or mortgagors shall be entitled to redeem the same "divided part of the land or rent, on payment, with interest, of "the part of the mortgage-money which shall bear the same proportion to the whole of the mortgage-money as the value of

"such divided part of the land or rent shall bear to the value of "the whole of the land or rent comprised in the mortgage1."

And also, "That, after the said 31st December, 1833, no ac"tion or suit or other proceeding shall be brought to recover "any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land

66

66

66

3 & 4 W. 4,

2. 27, s. 28.

or rent, at law or in equity, but within twenty years next "after a present right to receive the same shall have accrued to "some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in 'writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; "and in such case, no such action or suit or proceeding shall be 'brought but within twenty years after such payment or ac"knowledgment, or the last of such payments or acknowledg"ments, if more than one was given 2." An equivocal expression Sect. 40. in this section has been since explained by the 1 Vict. c. 28, which, after reciting that doubts had been entertained as to the effect of the 3 & 4 Will. 4, c. 27, so far as the same relates to mortgages; and that it was expedient that such doubts should be removed," enacts, "that it shall and may be

66

lawful for any person entitled to or claiming under any mort'gage of land, being land within the definition contained in the "first section of the said act, to make an entry or bring an action "at law or suit in equity to recover such land at any time within

66

twenty years next after the last payment of any part of the "principal money or interest secured by such mortgage, although "more than twenty years may have elapsed since the time at which "the right to make such entry or bring such action or suit in

equity shall have first accrued, any thing in the said act not"withstanding."

2

CHAPTER XIII.

OF INCORPOREAL HEREDITAMENTS.

' Ante, p. 4.

SECT. 1.-SEIGNORIES AND MANORIAL RIGHTS.
SECT. 2.-RENTS.

SECT. 3.-RIGHTS OF COMMON.

SECT, 4.--RIGHTS OF WAY, WATER, LIGHT, &c.
SECT. 5.-TITHES.

SECT. 6.-ADVOWSONS.

SECT. 7. FRANCHISES.

THE general character of this species of hereditament has been already explained1, and its several varieties enumerated. I proceed now to give a detailed outline of the present state of the law respecting them.

2 Sect. 670.

SECT. 1.-OF SEIGNORIES AND MANORIAL RIGHTS.

Manors, 566.-Ownership of waste lands, 567.-—Ownership of land lying between a highway and the adjoining inclosure, 569. -Ownership of the sea-shore and lands acquired by 'alluvion, 570.—The Lord's right to approve,' 571.—Title to waste by adverse possession, 573.

"

،، The

Manors.]-The greater part of England has, from the time of the conquest, been parcelled out into manors, which are generally conterminous with the parishes in which they are situate. beginning of a manor," says Perkins 2, was, when the king gave a thousand acres of land, or a greater or lesser parcel of land, unto one of his subjects, and his heirs, to hold of him and his heirs, which tenure is knight's service at the least; and the donce did, perhaps, build a mansion-house upon parcel of the same land, and of twenty acres, parcel of that which remained,