to remain in possession, paying interest, but making no other acknowledgment of the mortgagee's title. In order to remove these doubts, it was enacted by the I Vict. c. 28. Limitation 7 Wm. IV. & 1 Vict., c. 28, that it should and might 7 Wm. IV. & be lawful for any person entitled to, or claiming under, any mortgage of land, to make an entry, or bring an action, or suit in Equity, to recover such land, at any time within 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 had elapsed since the time at which the right to make such entry, or bring such action or suit should have accrued. We have just seen that the Real Property Real Property Limitation Act, 1874 (j), substitutes (k) the term of Act, 1874. twelve years for that of twenty years as the time within which the mortgagee is to bring his action under the circumstances mentioned in the 3 & 4 Wm. IV., c. 27. It also (1) enacts that the provisions of the 7 Wm. IV. & 1 Vict., c. 28, are, after the 31st December 1878 (m), to be construed as if the period of twelve years had been therein mentioned instead of the period of twenty years. It follows that the mortgagee's right to recover the land is lost if he permit the mortgagor to remain for twelve years in undisturbed possession without payment of interest, or written acknowledgment of title. ment under Reference has already been made to cases as to Acknowledg the acknowledgment required by other sections of the these statutes. Statutes of Limitation, and those cases apply equally to acknowledgments of a mortgagee's title. With regard to payment, it has been recently laid down by the Court of Appeal that a payment, to come within the 7 Wm. IV. & I Vict., c. 28, must be a payment of principal or interest, and must be made by the mort (j) 37 & 38 Vict. c. 57. (k) S. I. (1) S. 9. S gagor, or some person bound to pay principal or interest on his behalf. Hence, a payment of rent made by a tenant of the mortgaged property to the mortgagee, in consequence of a notice by the mortgagee requiring the rent to be paid to him, is not such a payment (n). As to the possession necessary to bar the mortgagee's right to the land, it has been decided that if he is himself in possession of it, but under another title (as, for instance, where he is a tenant for life of the mortgaged estate), his possession in that capacity will not operate as a bar to his title as mortgagee (0). It was also held (p) under the 3 & 4 Wm. IV., c. 27, that a mortgagee of land might, at any time within twenty years after his last receipt of interest or of acknowledgment of his title, recover the mortgaged land from a tenant of the mortgagor, even though, as between such tenant and the mortgagor, the latter's right to the land had been barred, in consequence of his not having received any rent, or any acknowledgment of his title, from the tenant for twenty years past. Under the Act of 1874, this time would be limited to twelve years. Moreover (q), a person who has purchased the mortgaged property from the mortgagee, and at the same time bought up the mortgagor's equity of redemption (thus extinguishing the mortgage debt), still remains a person "claiming under," though not one "entitled to," a mortgage, within the meaning of the 7 Wm. IV. & 1 Vict., c. 28, and has, therefore, the same rights as against a tenant of the mortgagor, as the mortgagee himself would have had in the case last put. For otherwise the mortgagee, or persons claiming under him, might be prejudiced by the neglect of the mortgagor to (n) Harlock v. Ashberry, 19 Ch. D. 539. (q) Doe v. Massey, 17 Q. B. 373. receive rent, or an acknowledgment of title, from his own tenant-a contingency undesirable in the interest of the mortgagor himself, as tending to diminish the mortgagee's security, and thus make him less willing to allow the mortgagor time for repayment of the loan. CHAPTER XIV. OF AN EQUITY OF REDEMPTION (continued). In addition to those privileges of a mortgagee which have been mentioned in the previous chapter, there are two others, of a somewhat different nature, which will require a brief notice. If, The first of these arises from the fact of the mortgagee's being the legal owner of the mortgaged estate. This is his right to "Tack;" that is, to annex to his original security another which he holds for a subsequent debt due in respect of the same property. for instance, A. has an estate conveyed to him by way of mortgage in the usual form, and subsequently, without notice of the existence of any other incumbrance on it, advances a further sum of money to the mortgagor on the security of the same estate, he will have a right to "tack" this last advance to his first, and claim payment of both before he re-conveys the property, even as against an incumbrancer who lent his money on the security of the equity of redemption, before A. made his further advance. It will be obvious that this right to tack is a great advantage where the mortgagor is insolvent and the mortgaged estate is an insufficient security for all the money advanced on it by different persons. We will proceed, therefore, to consider the qualifications necessary to entitle a mortgagee to tack. Before doing so, we may mention that the 7th section of the Vendor and Purchaser Act, 1874 (a), for a short time did away with tacking in the case of any mortgage executed after the 7th August 1874. But the Land Transfer Act, 1875 (b), repealed this section as from the date at which it came into operation except as to anything duly done thereunder before the 1st January 1876. The first requisite for tacking is that the person When a mortclaiming to exercise it must be in possession of, or Must have gagee may tack. have the power to obtain the possession of, the legal legal estate. estate in the mortgaged property (c). For it is only in favour of a legal owner that an exception is made to the ordinary rule of equity, "that he who is first in point of time is to be considered as having the better right." The reason given for this exception is, that his right to be re-paid his further advance being equal (laying aside any question of priority) to the right of repayment of any other incumbrancer, Equity will not prevent him from availing himself, in order to obtain payment, of any advantage which he has in consequence of his possession of the legal estate in the mortgaged property. This reasoning cannot be called very satisfactory, and probably the best excuse that could be made for continuing the system of tacking is that given by a distinguished writer (d), namely that it has been so long established as to have become a rule of real property. It does not, as a rule, prevail in our colonies, even where the system of law is the same as our own; and in cases where it has been permitted, it would seem that the right to tack has been confined to the mortgagee himself (e), whereas our law (as we shall see presently) extends it to his assignee. (a) 37 & 38 Vict. c. 78. (b) 38 & 39 Vict. c. 87, s. 129. (c) Brace v. Marlborough, 2 P. W. 490, 495. (d) Story, Eq. Jur. § 414. (e) Gordon v. Lothian, 2 Grant, 293. |