erty instead of a foreclosure of such equity of redemption, on such terms as the court may think fit to direct. immediate. The court may therefore direct a sale at once, even against the wish of the mortgagor, and it will in- Sale may be cline to direct an immediate sale when the property is unproductive,2 or when such a sale is prima facie for the benefit of all parties, but in other cases it But time usually will give a limited time, varying from six months to allowed to one month," within which the mortgagor may redeem. redeem. The proceeds of such a sale, after satisfying the claims of the mortgagee, belong to the mortgagor. security. IV. c. 27. It has already been pointed out how the mortgagee Mortgagee may, under the Statutes of Limitation, lose his right may lose his to bring a personal action against the mortgagor, and in like manner he may be prevented from proceeding directly against the mortgaged property. For it is enacted by the 3 & 4 Wm. IV. c. 27,6 that no person 3 & 4 Wm. is to make an entry, or bring an action to recover any land, but within twenty years next after the time at which the right to make such entry or to bring such action shall have first accrued to some person through whom he claims; or, if such right shall not have accrued to any person through whom he claims, within twenty years next after the time at which the right to make such entry or to bring such action shall have accrued to the person making or bringing the same. And the third section of the act explains that the right to make such entry or bring such action shall 140. 1 Newman v. Selfe, 33 Beav. 522. 2 Foster v. Harvey (No. 2), 11 W. R. 899. 8 Hewitt v. Nanson, 28 L. J. (Ch.) 49. 4 Bellamy v. Cockle, 18 Jur. 465; Daniell, C. P. 1152. 5 Staines v. Rudlin, 16 Jur. 965; Smith v. Robinson, 1 Sm. & Giff. 6 S. 2. if the grantee has been in possession - be deemed to have first accrued from the time when such possession was discontinued, or-if the grantee has not been in possession, and his claim is in respect of an estate or interest in land conveyed to him (by any instrument other than a will) by a person in possession of such estate or interest-from the time when he became entitled to take possession. But if such estate or interest was one in reversion or remainder, then the right is to be deemed to have accrued from the time when the estate or interest came into possession. A further proviso is made by another (the fourteenth) section, namely, that if any acknowledgment of the title of the person entitled to any land shall have been given to him, or his agent, in writing, signed by the person in possession, or in the receipt of the profits of such land, then the right to make such entry, or bring such action, shall be deemed to have accrued at the tiine when such acknowledgment, or the last of such acknowledgments, if more than one, was given. A doubt was raised1 on the wording of this section, whether payment of interest was equivalent to a written acknowledgment of the mortgagee's title, or whether a mortgagee's right to recover the land was gone if he, for twenty years, allowed the mortgagor to remain in possession, paying interest, but making no other acknowledgment of the mortgagee's title. In order to remove these doubts, it is enacted by the 7 Wm. IV. & 7 Wm. IV. & 1 Vict. c. 28, that it shall and may be 1 Vict. c. 28. 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 1 Doe v. Williams, 5 A. & E. 291. Limitation by such mortgage, although more than twenty years have elapsed since the time at which the right to make such entry, or bring such action or suit, shall have accrued. The Real Property Limitation Act Real Property 1874,1 already referred to, substitutes 2 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, § 2. It also enacts that the provisions of the 7 Wm. IV. & 1 Vict. c. 28, are, after the 31st of December, 1878,4 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, at present, lost if he permit the mortgagor to remain for twenty years in undisturbed possession without payment of interest, or written acknowledgment of title, and that after the 31st of December, 1878, such neglect on his part for a period of twelve years will bar his right to recover the mortgage security. these statutes. Reference has already been made to cases as to the Acknowledgacknowledgment required by other sections of the ment under Statutes of Limitation, and those cases apply equally to acknowledgments under § 14 of the 3 & 4 Wm. IV. c. 27. With regard 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. 2 S. 1. 3 S. 9. 4 S. 12. 1 37 & 38 Vict. c. 57. It has also been held1 that a mortgagee of land may, 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 is barred, under the 3 & 4 Wm. IV. c. 27, in consequence of his not having received any rent, or any acknowledgment of his title, from the tenant for twenty years past. Moreover,2 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 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. 1 Doe v. Eyre, 17 Q. B. 366. 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. 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 Tacking. to his original security another which he holds for a subsequent debt due in respect of the same property. If, 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 reconveys 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.1 It will be obvious that this right to tack is a great 1 [A sort of tacking of debts prevailed in the Roman law, but not against intermediate incumbrancers. Cod. Lib. 8, tit. 27, 1. 1; Dig. Lib. 20, tit. 4, § 20; 2 Story, Eq. Jur. § 1010, and note. And in this country a registration of the mesne mortgage would of course prevent the operation of the rule as above stated.] |