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where parol acknowledgments are ineffectual, the acknowledgment or recognition must be in writing and signed by the mortgagor; and if there are two of them, both must sign it, or it will be ineffectual to bind the entire estate.1 Mere silence on the part of the mortgagor, where demands for payment are made upon him by the mortgagee, does not of itself amount to such a recognition of the mortgagee's rights as will save the statute. Any act of the mortgagor which operates to keep the mortgage debt on foot, also operates to keep up the mortgage lien, as an acknowledgment of the debt by the mortgagor in the mode and with the formalities required by law. A part payment of principal or interest made by the mortgagor or his agent revives the mortgage, and gives it a new lease of validity from the date of such payment; and a payment by one of two or more mortgagors, while the mortgage is still operative, it seems, will keep up the right of entry against all. But,

but has acknowledged the debt and paid interest upon it within twenty years, there is no presumption that the debt is discharged. Howard v. Hildreth, 18 N. H. 105; Wright v. Eaves, 10 Rich. (S. C.) Eq. 582. But unexplained possession of mortgaged premises for less that twenty years by the mortgagor may be left to the jury in connection with the partial payments and other evidence, as tending to show that the debt was fully paid. Gould v. White, 26 N. H. 178. The retention of mortgaged property after the law-day has passed is not prima facie evidence of fraud, nor does it authorize a legal presumption of payment. Steele v. Adams, 21 Ala. 534; Clark v. Johnson, 5 Day (Conn.), 373. But a mortgage given to secure the title to land sold and conveyed will be presumed extinguished after a lapse of from thirty to fifty-six years, and the enjoyment of the land under the title conveyed. Murray v. Fishback, 5 B. Mon. (Ky.) 403; Inches v. Leonard, 12 Mass. 379. Mere lapse of time raises no presumption in favor of a stranger against the title of a mortgagee; and in this case the stranger was in adverse possession at the commencement of the action. Appleton v. Edson, 8 Vt. 241. But as between the parties, the presumption of the payment of a mortgage becomes absolute after the lapse of fifteen years, if there is no entry, or payment of interest; and being a presumption of law, it is in itself conclusive, unless encountered by distinct proof. Whitney v. French, 25 Vt. 663.

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8 In Hough v. Bailey, 32 Conn. 289, HINMAN, C. J., said: "The mortgagor, both before and after he ceased to have any interest in the property, and within fifteen years from the time of bringing this petition, acknowledged the existence of the debt and promised to pay it. This recognition of the debt as still subsisting against him was in effect a recognition of the mortgage as a security for it, and prevented the time that had then elapsed from being counted or considered as any part of the fifteen years' uninterrupted possession necessary in order to bar the mortgagee's right to bring ejectment or foreclose the mortgage." Hart v. Boyd, 54 Miss. 547.

4 Pears v. Laing, L. R. 12 Eq. Cas. 51; Roddam v. Morley, 1 De G. & J. 1. Payments of interest made by tenant for life have been held sufficient as against the remainder-man. Tofh v. Stephenson, 1 De G. M. & G. 40; Pears v. Laing, L. R. 12 Eq. Cas. 51; Roddam v. Morley, ante. So a payment by the mortgagor's solicitor. Ward v. Carter, L. R. 1 Eq. 29. But in order to make a payment by a person other than the mortgagor operative to keep the 1 Richardson v. Younge, L. R. 6 Ch. mortgage on foot, either express authority

in order to have that effect, the payment must be made while the mortgagor owns the equity of redemption, and a payment made after he has parted with the same does not revive or keep on foot the mortgage security, as, from the time when he parts with his interest in the land, his power to bind it in any manner is gone, either as to past or future debts. The payment of interest on a mortgage debt by the mortgagor repels the presumption of payment arising from the lapse of time.1

SEC. 230. Effect of Acknowledgment or New Promise upon the Mortgage. So long as the debt which a mortgage is given to secure is kept on foot, the mortgage lien remains in full force. Therefore, any acknowledgment or promise of the debtor sufficient to prevent the statute from running against the debt, equally prevents the statute from running upon the mortgage; and, as we have seen, such also is the effect of a part payment, either of principal or interest made upon the mortgage. But where the rights of subsequent mortgagees intervene, or where the mortgagor has sold the premises, an acknowledgment or payment afterwards made by the mortgagor after the statute bar has become complete, revives the mortgage so as to defeat any of the rights of such subsequent mortgagee or grantee. But so far as his own interests are concerned he may revive the mortgage by such acts, but not so as to impair or defeat the rights of other parties who, previous to such acts, acquired an interest in the premises. Where a subsequent grantee or mortgagee agrees to pay the mortgage, and the mortgagor, either by suit or otherwise, insists upon his performance of this contract, a payment of either principal or interest made by such grantee or mortgagee upon the mortgage, will keep it on foot not only as against him, but also as against his grantor or mortgagor. It seems that, when the statute has run upon a prior mortgage, the holder of a subsequent

must be established, or the payment must be made by a person so situated in reference to the property and the mortgagor that the law will imply authority. Chinnery. Evans, 11 H. L. Cas. 115.

1 Hughes v. Blackwell, 6 Jones (N. C.) Eq. 73; Howard v. Hildreth, 18 N. H. 105; Wright v. Eaves, 10 Rich. (S. C.) Eq.


2 Hart v. Boyd, 54 Miss. 547. See Cheever v. Perley, 11 Allen (Mass.), 584; Jarvis v. Albro, 67 Me. 310, as to the effect of acknowledgment in repelling presumption of payment. In California, it is held that after the rights of third parties have intervened, the mortgagor cannot, by any act of his, either suspend the running of the statute, or revive the debt after the statute has run upon it. Wood v. Good

fellow, 43 Cal. 185; Lichel v. Carillo, 42 id. 493; Lent v. Shear, 26 id. 361; Barber v. Babel, 36 id. 11. But this doctrine, so far as the mortgagor's power to suspend the running of the statute is concerned, does not find any support in the courts of other States. Waterson v. Kirkwood, 17 Kan. 9; Clinton Co. v. Cox, 37 Iowa, 570.

3 Raddam v. Morley, 1 De G. & J. 1; Pears v. Laing, L. R. 12 Eq. 51; Hough v. Bailey, 32 Conn. 288; Ayres v. Waite, 10 Cush. (Mass.) 72; Baton v. McIntire, 8 Met. (Mass.) 87; Clinton Co. v. Cox, 37 Iowa, 570.

4 N. Y. D. & Transportation Co. v. Covert, 29 Barb. (N. Y.) 435.


5 Schumaker v. Sibert, 18 Kan. 104.
6 Cucullu v. Hernandez, 103 U. S.

mortgage is entitled to have the prior mortgage cancelled as against a mortgagee out of possession, and a court of equity, upon proper proceedings to that end, will direct its cancellation on the ground of such bar.1

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SEC. 231. Effect of Fraud on Part of Mortgagee. When the mortgagee has been guilty of fraud, either at the time the mortgage was made or subsequently, which has prevented the mortgagor from redeeming, a court of equity will let the mortgagor in to redeem, although more than the statutory period has elapsed since the mortgagee went into possession.2 In an English case the mortgage contained a provision that it should be redeemed with the mortgagor's own money. The court held that the words signified nothing where the money was to be repaid, "for the borrower being necessitated, and so under the lender's power, the law makes a benign construction in his favor," and the imposition of such terms was held to amount to a fraud in its creation, and therefore that the mortgage was redeemable at any time.


SEC. 232. Distinction between Equitable Lien for Purchase-money and Mortgage. While the statute does not run upon a mortgage until the lapse of the period requisite to bar an entry upon lands, yet it is. held in New York and Mississippi that an equitable lien in favor of the vendor of land for the purchase-money is barred when the debt itself is barred.1 "There is," says BOWEN, J.,5 "a material distinction between a mortgage and an equitable lien for the purchase price of land given by law, and also between an action to foreclose a mortgage and one to enforce a lien." A lien created by law must coexist with the debt, and cannot survive it. In the case last cited it was held that, while a vendor's lien has the incidents of, it is not a mortgage, but consists solely in debt, and must be subject to all the incidents of the debt, and cannot be enforced when the debt cannot be, and therefore that, when a purchase-money note is barred by the statute, the remedy to enforce the equitable lien is also barred. "It is," say the court, a secret equity, and is not recognized as against the rights of a purchaser from the vendee without notice." In the New York case 7 the court say: "The action to foreclose a mortgage is brought upon an instrument under seal which acknowledges the existence of the debt to secure which the mortgage is given; and by reason of the seal the debt is presumed not to have been paid until the expiration of twenty years after it becomes due and payable.

1 Fox v. Blossom, 17 Blatchf. (U. S. C. C.) 352.

2 In Reigal v. Wood, 1 Johns. (N. Y.) Ch. 595, this rule was applied in a case where a judgment was revived by fraud and imposition. Rakestraw v. Brewer, Sel. Cas. in Ch. 55; Marks v. Pell, 1 Johns. (N. Y.) Ch. 494.

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The six years' limitation has

3 Ord v. Smith, Sel. Ch. Cas. 9. Trotter v. Erwin, 27 Miss. 772; Littlejohn v. Gordon, 32 id. 235.

5 Borst v. Corey, 15 N. Y. 505.

6 Borst v. Corey, ante; Trotter v. Erwin, ante.

7 Borst v. Corey, ante.

no application to a mortgage. . . . The equitable lien is neither created nor evidenced by deed, but arises by operation of law, and is of no higher nature than the debt which it secures. It must coexist with the debt, and cannot survive it." But the doctrine of these cases is denied, as we believe, successfully by courts of high authority, and we are inclined to the opinion that, upon principle and the weight of authority, the fact that the debt is barred does not destroy the lien which the law gives to the vendor of lands for the purchase-money, but that it remains liable to be enforced in equity, until the lapse of such a period as, by the statutes of the State, is requisite to give a title by possession. This doctrine is sustained by the courts of Maryland,1 Virginia, Connecticut, and Alabama. In Alabama, this question has been raised in several cases, and in a recent case before that court,5 BRICKELL, C. J., reviewed the authorities, and gave expression to the doctrine which we believe is best sustained upon principle and by authority. In that case a bill was brought to enforce a vendor's lien for the unpaid purchase-money of land. The statute had run against the notes given therefor, and as a consequence it was insisted that the lien was destroyed. But the court held otherwise, BRICKELL, C. J., saying, "The authorities, which doubtless induced the decree of the Chancellor, and which are now relied on to support it, are Driver v. Hudspeth and Relfe v. Relfe. The first was a proceeding under the statute then in force in the Orphans' Court, at the instance of a vendee holding a bond for title, to compel the personal representatives of the vendor, who had died, to make him title. The purchase-money had not been paid,


but an action at law on the notes given for it was barred by the statute of limitations. It was held that a vendor retaining the legal titles, and entering into bond for its conveyance only on payment of the purchase-money, had a lien in the nature of a mortgage; that this lien the court would not divest until the purchase-money was paid, and that it was not impaired, because an action at law for the recovery of the purchase-money was barred by the statute of limitations. The court say:

The fact that the notes were barred by the statute of limitations does not destroy the lien, which is regarded in the nature of a mortgage. If the vendor whose notes are barred, or his heirs after his death, should bring ejectment to recover the land, and thus drive the purchaser into a court of equity to enjoin the action, it is clear to my mind that the

1 Magruder v. Peter, 11 G. & J. (Md.) 217.

2 Lingan v. Henderson, 1 Bland (Va.), 282; Hopkins v. Cockerell, 2 Gratt. (Va.)


In this State the question was not directly passed upon, but applying the rule stated in the case, it would sustain the general doctrine announced in the text. Belknap v. Gleason, 11 Conn. 160.

4 Driver v. Hudspeth, 16 Ala. 348; Relfe v. Relfe, 34 id. 500; Bizzell v. Nix, 60 id. 281; 31 Am. Rep. 38.

5 Bizzell v. Nix, ante.

6 Higgins v. Scott, 2 B. & Ad. 413; Spears v. Hartley, 3 Esp. 81; Hopkins v. Cockerell, 2 Gratt. (Va.) 68.

7 Driver v. Hudspeth, 16 Ala. 348.
8 Relfe v. Relfe, 34 Ala. 500.

Court of Chancery would not interfere until he had paid up the purchase-money, the remedy to recover which at law had been barred by the statute of limitations. The court of equity would not decree a specific performance in favor of one who withholds the compensation he stipulated to pay, upon the ground that the legal remedy to recover it is barred. The vendor is not bound to sue upon his note, but may rest upon the security furnished by his lien.'

"The contract of sale, in Relfe v. Relfe, was by parol, and, so far as is shown by the report of the case, the vendor had not conveyed. It was held that the lien for the payment of the purchase-money was not lost or destroyed, because the statute of limitations had operated a bar for its recovery in an action at law. It was further held that the lien could not be regarded as a stale demand within less than twenty years after the sale. It is said by the court: The principle which preserves liens, notwithstanding the bar of the debt, is neither confined to those secured by a conveyance, as for example a mortgage, nor to those secured by a sealed instrument, nor even to those provided by an express contract.' Again: The principle is, the statute of limitations does not extinguish the debt, but merely bars the remedy by action at law, and there is no inconsistency in the prosecution of another remedy after the action at law is barred.' The court was referred to the New York and Mississippi decisions, to which the appellant now refers, and declined to follow them, saying, 'These decisions are not correct expositions of the law.'

"We are not inclined to depart from these decisions. The present case is different in its facts, and the rights of the parties are materially different; but the difference does not render inapplicable the principle which underlies and forms the reason of these decisions. In the present case the vendor parted with the legal estate, and, taking no independent security for the purchase-money, has simply the lien which a court of equity, on its own principles, raises and enforces for his security. It is not matter of contract, it does not arise from the presumed intention of the parties, though its existence or waiver may often depend on such intention. It is subordinate to other equities acquired by strangers in ignorance of its existence, and it is moulded and fashioned by the court as the facts of the particular case may require. With the lien of a vendor retaining the legal estate as a security for the purchase-money, it has no other common element than that it is a security for a debt, passing by an unqualified assignment of the debt, and capable of enforcement by a decree of a court of equity. It has not the qualities of a mortgage, which is a conveyance of the legal estate, conferring a right of entry at law, and to which the lien of a vendor retaining the legal estate is analogous. Bankhead v. Owens, at present


"The general principle, that when the security for a debt is a lien on property, personal or real, the lien is not impaired, because the remedy

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