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during the whole period does not save the mortgage from the operation of the statute.1 When the mortgagee enters into the possession of the mortgaged premises for condition broken, the statute begins to run against the mortgagor from the time of such entry.2 But if the mortgagee enters under an agreement expressed in the mortgage, or entered into subsequently, that he shail take possession and reimburse himself the mortgage debt from the rents and profits, the statute does not begin to run against the mortgagor until the debt is fully satisfied from such rents and profits, or he asserts title in himself, and gives the mortgagor distinct notice thereof." But if the agreement is that the mortgagee shall enter and have the rents and profits for a distinct or definite period, the statute will not begin to run against the mortgagor until such period has elapsed; as in such case a court of equity would restrain the mortgagor from setting up a legal title to the land in himself, or from disturbing the mortgagee in his possession until the debt is satisfied.5 When a mortgage is payable by instalments, the statute attaches to each instalment as it becomes due, but the mortgagor's possession does not become adverse until the last instalment has matured. Nothing short of actual possession by the mortgagee, continued for the entire statutory period, without recognition of the right of the mortgagor to redeem, will operate to convert his estate into an absolute title in equity,' and mere constructive possession is not sufficient; nor is payment of taxes for the statutory period, without actual possession, enough to cut off the mortgagor's right to redeem; and the rule is not varied by the circumstance that the lands are wild and uncleared.10 Where a right to redeem is not cut off by foreclosure proceedings, it seems that the statute does not begin to run in favor of the purchaser until the expiration of the period fixed in the decree for redemption."1 SEC. 225. Right of Redemption barred, when. When a mortgagee has been in possession of mortgaged premises after condition broken, for the period requisite to acquire a title to lands by adverse possession, without the payment to him of any part of the principal or interest due upon the mortgage, in the absence of any statute fixing the period within which the mortgagor may redeem, courts of equity, acting in analogy to the statute, treat the lapse of such period as prima facie a bar to his right to redeem, 12 unless the mortgagor or those claiming Demorest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129.
1 Anderson v. Baxter, 4 Oreg. 105.
2 Bailey v. Carter, 7 Ired. (N. C.) Eq. 282; Montgomery v. Chadwick, 7 Iowa, 114; Waldo v. Rice, 14 Wis. 286; Hubbell v. Sibley, 50 N. Y. 468; Miner v. Beekman, id. 337; Peabody v. Roberts, 47 Barb. (N. Y.) 41; Knowlton v. Walker, 14 Wis. 286.
3 Frink v. Le Roy, 49 Cal. 314; Anding v. Dadis, 38 Miss. 574.
4 Frink v. Le Roy, ante.
6 Parker v. Banks, 79 N. C. 480.
7 Miner v. Beekman, 50 N. Y. 337;
8 Slee v. Manhattan, 1 Paige (N. Y.) Ch. 48; Moore v. Cable, 1 Johns. (N. Y.) Ch. 387.
9 Bollinger v. Choteau, 20 Mo. 89. 10 Moore v. Cable, ante.
11 Rockwell v. Servant, 63 Ill. 424.
12 Barron v. Martin, 19 Ves. 397; Crawford v. Taylor, 42 Iowa, 260; Robinson v. Fife, 3 Ohio St. 551; Demorest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129; Blake v. Foster, 2 B. & B. 402; Montgomery v. Chadwick, 7 Iowa, 114; Howland v. Shurt.
under him, during that period, were under some of the disabilities specified in the statute as suspending the statute, in which case proper allowance is made therefor,' which, in the absence of any provision in the statute itself, is usually ten years after the removing of such disabilities in analogy to the Stat. 21 James I.; but if the statute makes specific provision as to the period within which action may be brought after the removal of such disabilities, such statutory period would be adopted. As we have already seen in New York, New Jersey, Mississippi, Minnesota, and North Carolina, by statute, the right of redemption is barred in ten years, in Kentucky in fifteen, and in California in five years. In all the other States the right is left subject to the common-law rules which have grown up under the statutes. But, as has been stated, this bar is only prima facie, and in order to be operative the mortgagee's possession must have been adverse during the respective periods; and if his possession is consistent with the rights of the mortgagor, this prima fucie bar does not attach,4 as, if he recognizes the mortgagor's right to redeem by accepting a part payment of the principal or interest upon the mortgage, or acknowledging such right, by recognizing the mortgagee as such, and the commencement of foreclosure proceedings, either under a statute or in equity, is sufficient to let the mortgagor in to redeem; or, indeed, any acknowledgment in writing sufficient to take an ordinary debt out of the operation of the statute would be sufficient;" but a mere parol acknowledgment, would not be sufficient, as now in nearly all the States and Territories of this country except those previously named, as in England, an acknowledgment of a debt to be sufficient must be in writing, signed by the person to be charged. Where there are two or more mortgagees, all must sign the acknowledgment, as only those who do sign will be bound thereby in those States where provision is made that the acknowledgment of one joint contractor, &c., shall not be binding upon the others. The acknowledgment, to be operative, must be made by and to the proper party. It is not the naked possession, but the nature of it, which determines his right. The possession must not only be adverse, but it
leff, 2 Met. (Mass.) 26; Dexter v. Arnold, 1 Sumner (U. S.), 109; Hoffman v. Harrington, 33 Mich. 392; Slee v. Manhattan Co., 1 Paige (N. Y.)Ch. 48; Hall v. Denckla, 28 Ark. 506; Phillips v. Sinclair, 20 Me. 269; Slicer v. Bank of Pittsburg, 16 How. (U. S.) 571; Knowlton v. Walker, 13 Wis. 264; Gunn v. Brantley, 21 Ala. 633.
1 Prince v. Kopner, 1 S. & S. 347; Beckford v. Wade, 17 Ves. 99; White v. Ewer, 2 Vent. 340; Demorest v. Wynkoop, ante.
2 Lamarv. Jones, 3 H. & McH. (Md.) 328. 8 Hyde v. Dalloway, 2 Hare, 528. 4 Wallen v. Huff, 5 Humph. (Tenn). 91; Rockwell v. Servant, 66 Ill. 424; Waldo v. Rice, 14 Wis. 286; Humphrey v. Hurd, 26 Mich. 44; Crawford v. Taylor,
42 Iowa, 260; Yarbrough v. Newell, 10 Yerg. (Tenn.) 376; Quint v. Little, 4 Me. 495; Kohlheim v. Harrison, 34 Miss. 457; Frink v. Le Roy, 49 Cal. 314; Teulon v. Curtis, 1 Younge, 616; Morgan v. Morgan, 10 Ga. 297; Knowlton v. Walker, 13 Wis. 264. 5 Knowlton v. Walker, ante.
6 Calkins v. Isbell, 20 N. Y. 147; Jackson v. Slater, 5 Wend. (N. Y.) 295; Robinson v. Fife, ante; Cutts v. York Mfg. Co., 18 Me. 140; Jackson v. De Lancey, 11 Johns. (N. Y.) 365.
7 Stansfield v. Hobson, 3 De G. M. & G. 620; Price v. Cooper, 1 S. & S. 347 ; Lake v. Thomas, 3 Ves. 17.
8 Richardson v. Young, L. R. 10 Eq. Cas. 275.
Reynolds v. Green, 10 Mich. 355;
must also be actual; and mere constructive possession will not avail,1 nor will an occasional occupation be sufficient. It must be continuous and without interruption, and adverse to the mortgagor's right to redeem. Payment of taxes on wild land of itself does not amount to a possessory act, but accompanied with actual possessory acts, such as the premises are susceptible of, and which constitute a badge of ownership, it would doubtless be held sufficient.
SEC. 226. When Mortgagor is in Possession of a Part of the Premises. When the mortgagor is in possession of a part of the premises, and the mortgagee is in possession of the other part, it seems that no length of time will bar the mortgagor's right to redeem, because, solong as the right to redeem any part of the estate remains, it exists as to the whole under the rule that, except in special instances, there can be no redemption of separate parts of the mortgaged estate, and the same rule prevails when the mortgagor is constructively in possession.* SEC. 227. Liability of Mortgagee in Possession. If a bill to redeem is brought by a mortgagor before the mortgagee has been in possession for the period requisite to bar the mortgagor's right, he will be compelled to account for the rents and profits of the estate during his occupancy. He is not obliged to lay out money any further than to keep the estate in necessary repair; but on a bill to redeem he will be made to account for all loss and damage occasioned by his gross negligence in respect of bad cultivation and non-repair. He will also be charged, not only for all rents received, but also for all rents which but for his wilful neglect or default he might have received. A mortgagee in possession has been held not chargeable as for wilful default in declining to defend an action of replevin brought by the owner of goods distrained. on the premises by such mortgagee. If he has expended any sum in. supporting the right of the mortgagor to the estate, where his title has been impeached, the mortgagee may certainly add that to the principal of his debt; and it shall carry interest. Where a mortgagee has been put to expense in defending the title to the estate, the defence being for the benefit of all parties interested, he is entitled to charge such expenses against the estate; but if his title to the mortgage only is disputed, the costs of his defence should not be borne by the estate as against parties interested in the equity of redemption, unless they can be shown to have concurred or assisted in the litigation. If the
4 Archbold v. Scully, 9 H. L. 360; Drummond v. Lant, L. R. 6 Q. B. 763.
6 Wragg v. Denham, 2 Y. & C. 117; Fisher, 901-909; Wood's Landlord & Tenant, 198-199.
Fisher, §§ 873, 894, 895; Brandon v Brandon, 10 W. R. 287.
7 Cocks v. Gray, 1 Giff. 77.
8 Parker v. Watkins, 1 Johns. 133.
estate lies at such a distance that the mortgagee must employ an agent to collect the rents, what he pays to the agent shall be allowed; but not where he does or may receive the rents himself. It is the settled practice in the Court of Chancery not to take an account against a mortgagee in possession with annual rests, where, at the time of his entering into possession, there is an arrear of interest.1 A mortgagee of leaseholds may take possession, even where there is no arrear of interest due, under circumstances which may not render him liable to account with annual rests; as where he enters in order to prevent a forfeiture for non-payment of ground-rent or for non-insurance. The Court of Chancery will not suffer, in a deed of mortgage, any stipulation to prevail, that the estate should become an absolute purchase in the mortgagee upon any event whatsoever. A court of common law has no power to compel a reconveyance of a mortgaged estate after payment of the mortgage debt, interest, and costs. The statute does not run against the mortgagor's right to have an account, until his right to redeem is lost.
SEC. 228. Welsh Mortgages. - Welsh mortgages are effected by a conveyance of property to a mortgagee, coupled with occupation by him on the understanding that he is to pay himself the interest of the money lent by receiving the profits of the land. The land may be redeemed at any time on repayment by the mortgagor of the money lent; and the mortgagee cannot foreclose, though now equity would probably compel an account against the mortgagee. The reason for
this is, that the receipt of the rents and profits in reduction of the debt operates as a constant renewal of the mortgage. If a mortgagee after repayment of the mortgage debt continues to hold the property twenty years, the mortgagor will, it appears, be barred his right to recover it. Any arrangement for securing repayment of a loan by demise, or granting annuities possessing characteristics similar to those above mentioned, is considered in the nature of a Welsh mortgage.' Where no time of payment is fixed, as is the case in this class of mortgages, it is perhaps true that a redemption will be decreed at any time; but this right may be lost by a subsequent agreement of the parties; so, too, by an express notice given by the mortgagee to the mortgagor that he claims adversely.12
1 Nelson v. Booth, 3 De G. & J. 119. 2 Patch 7. Wild, 30 Beav. 99.
8 Bonham v. Newcomb, 1 Vern. 8, 232; Toomes v. Conset, 3 Atk. 261; Vernon v. Bethell, 2 Eden, 110; Fisher, § 126; Powell on Mortgages, 116 a, note (H).
Gorely v. Gorely, 1 H. & N. 144. 5 Talbot v. Braddil, 1 Vern. 395; Lawley v. Hooper, 3 Atk. 280; Yates v. Hambly, 2 id. 237.
6 Fulthrope v. Foster, 1 Vern. 477. 7 Ord v. Heming, 1 Vern. 418; Marks v. Pell, ante; Fenwick v. Reed, 1 Mer.
8 Fenwick v. Reed, 1 Mer. 119. Teulon v. Curtis, 1 Younge, 616. 10 Ord v. Heming, 1 Vern. 418; Fenwick v. Reed, 1 Mer. 114.
11 Hartpole v. Walsh, 5 Bro. P. C. 267. 12 Talbot v. Bradel, 1 Vern. 398; Yates
SEC. 229. Presumption of Payment. Effect of Part Payment. Courts of equity, although not strictly bound by the statute of limitations, except in those States where express provision to that effect is made, nevertheless, as we have seen,' usually adopt a period in analogy to the statute as sufficient to raise a presumption against the right sought to be enforced; and where it is sought to enforce a mortgage after the lapse of the statutory period, when the mortgagor has been in possession and there has been no payment thereon within that period, or express recognition of the rights of the mortgagee, the courts will presume that the debt has been paid and the mortgage lien satisfied; 2 and this furnishes a good defence to an action of ejectment or a bill to foreclose brought by the mortgagee. This presumption is not irrebuttable, but may be overcome by proof of a part payment of principal or interest, or a direct recognition of the mortgagee's rights, sufficient under the statute to amount to an acknowledgment, which, in those States
v. Hambly, 2 Atk. 360; Alderson v. White, 2 De G. & J. 97; Lanquet v. Scawen, 1 Ves. 403.
1 See Chap. VI., EQUITABLE ACTIONS. 2 Reynolds v. Green, 10 Mich. 355; Bacon v. McIntire, 8 Met. (Mass.) 87; Martin v. Bowker, 19 Vt. 526; Hoffman r. Harrington, 33 Mich. 392; Newcomb v. St. Peter's Church, 2 Sandf. (N. Y.) Ch. 552; Donald v. Sims, 3 Ga. 383; McNair v. Lot, 34 Mo. 285. The possession of the mortgagor before condition broken is not hostile to that of the mortgagee, but after that event, if no payments are made upon the mortgage for the entire statutory period, the presumption that the mortgage has been satisfied is well sustained, although until the entire statutory period has elapsed the mortgagee is treated as constructively in possession. Atkinson v. Patterson, 46 Vt. 750; Doe v. Williams, 5 Ad. & El. 291; Doe v. Surtees, 5 B. & Ald. 687; Pitzer v. Burns, 5 W. Va. 63; Howland v. Shurtliff, 2 Met. (Mass.) 26; Martin v. Jackson, 27 Penn. St. 504; Bates v. Conrow, 11 N. J. Eq. 137; Boyd v. Beck, 29 Ala. 703; Sheafe v. Gerry, 18 N. H. 245; Higginson v. Niven, 4 Cranch (U. S.), 415; Benson v. Stewart, 30 Miss. 49; Roberts v. Littlefield, 48 Me. 61; Chick v. Rollins, 44 id. 104; Inches v. Leonard, 12 Mass. 379; Drayton v. Marshall, Rice (S. C.) Eq. 373; Downs v. Sooy, 28 N. J. Eq. 55. And a less period than that fixed by the statute for barring similar rights at law will not be suffi
cient to raise a presumption of payment. Boon v. Pierpoint, 29 N. J. Eq. 7.
8 Jackson v. Pratt, 10 Johns. (N. Y.) 381; Jackson v. Wood, 12 id. 242; Howland v. Shurtliff, ante; Martin v. Bowker, 19 Vt. 526; Hughes v. Edwards, 9 Wheat. (U. S.) 498; Reynolds v. Green, 10 Mich. 355; Field v. Wilson, 6 B. Mon. (Ky.) 479; Hoffman v. Harrington, 33 Mich. 892; Wilkinson v. Flowers, 37 Miss. 579; McNair v. Lot, 34 Mo. 285.
Jarvis v. Albro, 67 Me. 310. And where the mortgagee is in possession, the mortgagor may avail himself of a part payment to save the statute as against him. Ford v. Hyer, 2 H. & C. 279; Palmer v. Eyre, 17 Q. B. 366. This presumption may be overcome by circumstances which fairly overthrow it. Snavely v. Pickle, 29 Gratt. (Va.) 27; Brobst v. Brock, 10 Wall. (U. S.) 519; Leman v. Newham, 1 Ves. 51; Hale v. Pack, 7 W. Va. 145. Where a mortgage was executed, in 1706, to a resident of Great Britain, who remained there, and never was in possession of the land mortgaged, and the mortgagor had, in 1741, devised the lands to his sons, held, that no presumption could arise that the mortgage had been satisfied, before the year 1780, in favor of a person with fifty years' exclusive possession, who did not derive his title under the mortgage. Owings v. Norwood, 2 Har. & J. (Md.) 96. When a mortgagor has retained possession of the mortgaged premises for more than twenty years after the execution of the mortgage,