it was agreed between him and Charlton that Reed should retain possession, until not only the debt due to Rooke, but also the debt due to Reed, should be paid; that the whole of those debts had been fully paid; that the defendant Reed had kept accounts as mortgagee; that with respect to the objections which might arise from length of time, Charlton could not have had possession until all the debts were paid; that in 1781 a considerable part of the debts remained undischarged; and that since 1783, when the defendant Reed took possession, he had given out that part of the debts remained unsatisfied. Reed, in his answer, denied the circumstances from which it was attempted to be inferred that he had treated the transaction as a mortgage, and insisted that from the length of time a release of the freehold ought to be presumed. He denied his belief of any agreement between his ancestor and Charlton, and alleged that he entered merely as creditor, having a right to redeem against Rooke. He admitted the assignment of 1752 to be in his possession, but said he had no knowledge of the agreement of 1747, except from the recitals in the assignment. The bill was amended in 1801 and 1803, and answers put in, to which no exceptions were taken. In 1807, the plaintiffs moved to file exceptions nunc pro tunc, which was refused with costs. In the same year the bill was again amended, and an answer put in in 1808; from which time no further proceedings appeared until the present motion in 1816. The Lord Chancellor observed, the transaction appeared to be in the nature of a Welch mortgage, and that time would be no bar to redemption, unless it were proved that the party had held over for the space of twenty years after the debt was fully paid and satisfied; that if the assignment to Reed was only until Rooke's debt was paid, it was impossible to say the bar might not be set up in the present case, and in a future stage of the cause it might be just to determine accordingly. But on this point the answer left it doubtful, not only whether Reed took possession under an agreement to pay himself his own debt in addition to Rooke's, but if it did so, whether the amount of both the debts had even yet been satisfied by the perception of rents and profits. The Lord Chancellor then remarked, that if the present was not a case in which length of time alone would operate as a bar to redemption, the question still remained whether there were circumstances to raise the presumption of a release. The weight of long continuance of possession as a ground for such presumption, he observed, must depend most materially on the nature of that possession. And here again, there was no certainty in the case as it then stood, whether the possession by Reed, after Rooke's debt was paid, was originally adverse; or whether, at first holding by virtue of a distinct agreement with the Charltons, his possession became adverse at some period subsequent to his entering under that agreement. In the latter case, he added, it would be much more difficult to raise the presumption contended for: these were undoubtedly points fit for future inquiry.

At the autumn assizes for 1821 an ejectment was brought, by the direction of the Vice Chancellor, on the demise of Fenwick v. Reed. The question submitted to the jury was, whether a conveyance from Edward or William Charlton could be presumed? The defendant

N

was prohibited from setting up as a defence, that the debts due or assigned to Reed were paid twenty years ago, or that the same were still unpaid. On the trial, the jury, under the direction of the Judge, found a verdict for the plaintiff. On the 9th November, 1821, Serjeant Hullock moved the Court of King's Bench for a new trial, on the ground of misdirection, which was refused (o).

We may here remark, that although a lease granted in consideration of a loan of money is impeachable; yet a lease granted, as a security for a loan, at a fair rent to be retained in payment of the debt, is valid, and equity will not enter into an inquiry as to the value of the rent after long acquiescence on the part of the debtor; and such a lease is in the nature of a Welch mortgage (p).

But in the same case, a renewed lease granted before the expiration of the old lease, at the old rent, to secure the balance then due and a further loan, and which was on the face of it at an under value, was set aside as fraudulent, and the mortgagee made to account from that time for the full value of the premises (q); and, as being guilty of a fraud, was refused costs (r).

Although by the 28th section of the 3 & 4 Wm. 4, c. 27, as subsequently noticed (s), the right of redemption by a mortgagor is lost at the end of twenty years next after the mortgagee takes possession, unless there has been some intermediate acknowledgment of right, yet it is conceived that this enactment cannot apply to the case of Welch mortgages (in which the original stipulation is, that the mortgagee shall hold and receive the rents until his debt is satisfied) unless twenty years shall have elapsed from the period when, by the receipt of the rents, the mortgage debt and interest might have been paid.

(0) 5 Barn. & Ald. 233.
(p) Morony v. O'Dea, 1 Ball & B.

109.

Ibid.

Ibid.

Vide infra.

CHAPTER XI.

OF MORTGAGES BY TENANTS IN TAIL, AND BY DEFECTIVE

CONVEYANCE.

INSTANCES have occurred in which, from the circumstance of the title deeds being in the custody of a tenant for life in possession, who has refused to permit them to be inspected, or from other circumstances, a mortgage security has been taken from a person as tenant in fee, who, on further inquiry, or on subsequent inspection of the title deeds, after the estate has fallen into possession, has proved to be tenant in tail only. In this case, if the mortgage be by demise, the mortgagee obtains a term of years determinable by entry of the issue, and if in fee, he obtains a base fee, determinable in like manner (a). It was indeed formerly held (b), that the estate of the grantee was void on the death of the tenant in tail, and not voidable only, but this was overruled by Lord Holt, in Machell v. Clarke (c).

If, prior to the 3 & 4 Wm. 4, c. 74, the tenant in tail, subsequently to the mortgage, and even without reference to it, levied a fine or suffered a common recovery, he would have let in the mortgage, although he declared the use of the fine or recovery to a subsequent mortgagee or purchaser without notice (d). If the first mortgage was in fee, a subsequent legal common recovery would not have been valid without the concurrence of the mortgagee or his heirs, for the want of a good tenant of the freehold (e). But, on the principle of there being no degrees of estates in equity, it was decided that if equitable tenant in tail made a mortgage, he might suffer a recovery without the concurrence of the mortgagee (f)..

By the statute of the 3 & 4 Wm. 4, c. 74, fines and common recoveries, since the 31st December, 1833, are abolished, and entails in freehold estates have become barrable by deed of disposition inrolled in Chancery, and entails in legal copyhold estates are barrable by surrender, and in equitable copyhold estates by surrender or by deed inrolled in the Manor Court. By this statute a legal term has been created by the substitution of a protector, whose consent is required in the place of the concurrence of the freeholder for life in the old

(a) Machell v. Clarke, 2 Ld. Raym. 778.

(b) Tooke v. Glasscock, 1 Saund. 260. (c) Supra.

(d) Poph. 5, 6. Stapilton v. Stapil

assurance by common recovery, but with very considerable modifications of the law, for the purpose of more readily ascertaining the proper person to give such consent, and extending the office of protector, as well to persons having an estate of freehold, as to persons having a prior estate for years, determinable on a life or lives, and to persons who have parted with their estate, and to persons having no estate whatever, but specially appointed for the purpose.

It is intended by the statute to exclude from the office of protector all persons being bare trustees (unless taking under a settlement executed prior to the 31st December, 1833), and women taking in respect of dower, and all persons entitled in respect of any estate taken by them as heirs, executors, administrators or assigns, and to vest it in the person taking the first beneficial estate for a term determinable on a life or lives, or any greater estate prior to the estate tail under the same settlement or will, whether by force of the actual limitations or by resulting use or trust; and to continue the office in such person, notwithstanding alienation, but not in his representatives, and also to vest it in any person specially appointed for the purpose. The statute contains a provision in respect of settlements prior to the 1st January, 1834, in which cases the concurrence of the same person as protector is required as would have been a necessary party prior to the statute, in making the tenant to the præcipe; and in such cases the concurrence of the mortgagee will be still necessary, if the estate tail intended to be barred is legal.

The 21st section of the statute provides that the disposition by tenant in tail, by way of mortgage, or for any other limited purpose, shall, to the extent of the estate created, be an absolute bar in equity as well as at law, to all persons as against whom such disposition is by the act authorized to be made, notwithstanding any intention to the contrary expressed or implied in the deed by which the disposition may be effected, provided, that if the estate created by such disposition shall be only an estate pur autre vie, or for years absolute or determinable, or if an interest, charge, lien or incumbrance shall be created, without a term of years absolute or determinable, or any greater estate, for securing or raising the same, such disposition shall, in equity, be a bar only so far as may be necessary to give full effect to the mortgage, or to such interest, lien, charge or incumbrance, notwithstanding any intention to the contrary expressed or implied in the deed by which the disposition may be effected.

The practical effect of this clause appears to be, that in case tenant in tail creates a charge on the estate by way of demise for a term of years, or pur autre vie, or by way of mere charge without any actual estate, the issue in tail and remaindermen will be entitled, subject to the charge or incumbrance so created, notwithstanding any intention declared in the deed to the contrary, as, for example, the insertion of a proviso, making the estate redeemable by the mortgagor or his heirs. But if tenant in tail creates any interest by way of mortgage, exceeding his own life estate, and which in all probability will be in fee, the issue in tail and remaindermen will be bound by it both at law and in equity, although the estate be made redeemable by the mortgagor or the heirs of his body, or other the persons who would have been entitled

under the old limitations, in case the same had not been barred; so that it would seem to be the intention of the framers of the act in such latter case to require a new set of limitations by way of resettlement, unless the sole intent of the instrument be to let in the mortgage.

If the mortgage is in fee, and it is intended to resettle the estate to the old uses, the limitations should not be introduced into the proviso for redemption, and it may be prudent to make the new settlement by a distinct deed, although it is presumed the statute does not prevent a resettlement by the deed of mortgage, if the object is effected by a distinct set of limitations.

If the mortgage be for a term of years, it is presumed the statute does not prohibit the introduction of further limitations of express uses. In respect of estates voidable through the defective assurance of tenant in tail, the 38th section of the act has mainly followed the common law, by enacting that a voidable estate created in favour of a purchaser (or mortgagee) for a valuable consideration, shall (so far as a subsequent assurance by the tenant in tail can operate under the provisions of the act) be confirmed by such assurance. But the statute has altered the common law, by introducing an exception in favour of a purchaser not having express notice of the first assurance, and consequently such purchaser, although he may have notice by implication of the defective assurance, yet, if he has not express notice, will not be bound by it.

The mortgagee may by bill in equity compel the mortgagor tenant in tail, to perfect the title, but the Court will not point out what title the mortgagor shall make; it will decree him to make such title to the mortgagee as he is capable of doing (g).

It must be always borne in mind that the issue in tail claiming per formam doni will not be bound by their ancestor's contract (h).

Prior to the 3 & 4 Wm. 4, c. 74, a question was entertained in the case of a tenant in tail becoming a bankrupt after creating the mortgage and before perfecting the assurance. By the statute 21 James 1, c. 19, s. 12, the commissioners of bankrupts were authorized "by deed inrolled to grant, bargain, sell and convey all manors, &c. whereof any bankrupt was or should be seised of any estate tail, in possession, reversion or remainder to any person or persons for the benefit of the creditors of such bankrupt, and it was declared that such grants and sales should be good in law against such bankrupts, the issues of their bodies, and against every person claiming any estate, right, title, or interest under such bankrupts, after such time as such persons should become bankrupt, and against every person whatsoever, whom such bankrupts by common recovery or otherwise might cut off, or bar from any remainder, reversion, rent, profit, title or possibility, in, to or out of any of the said manors, &c."

It was questioned whether the bargain and sale of the commissioners would have the like effect, as the fine or common recovery of the tenant in tail, if levied or suffered before he became bankrupt, would have had, in letting in the mortgage incumbrance. A variety of cases have decided, that generally speaking, the assignees of a bankrupt (g) Sutton v. Sutton, 2 Atk. 101.

(h) Stapilton v. Stapilton, supra; et vide 3 & 4 Wm. 4, c. 74, s. 47.