is a great difference, and nothing proves it better than this, that though he is a trustee for twenty years, yet, if he takes but a little bit more, the case becomes altered, and after that time, without any acknowledgment, or any account, he is no longer a trustee (t). session. A mortgagee in possession has been described as a When in posbailiff without a salary, accountable to, but not paid by, the mortgagor (u) and quasi owner (x). When he takes possession he is not acting as a trustee for the mortgagor, but independently and adversely for his own benefit (y). sion. There is, however, this material difference between Difference be-adverse possession at law and the possession of the session and mortgagee; the former is inconsistent with the title of adverse possesthe true owner, the latter is consistent with the equitable title of the mortgagor. The former for twenty years gives absolute title at law, but the latter for the like period does not, in itself, give title against the mortgagor (z). upon before and A mortgagee may be, either before default, tenant His position in mortgage, or after default and before possession, in after posseswhich state he is a mere creditor, having a lien sion. the estate, and being entitled to take possession; or he may be, after possession and before payment of his debt, in which state he is a quasi owner, and is holding the estate for his own purpose of working out his own satisfaction; or he may be in, after payment of the debt, and then he is a mere trustee (a). The mortgagee, assenting to the acts of the mort- Assenting to gagor, adopts those acts (b), and, permitting the mort- the acts of the gagor to continue in the receipt of the rent, authorizes mortgagor. him, præsumptione juris, to realize, if necessary, the rent by distress in the name and as the bailiff of the mortgagee (c). If before 3 & 4 Will. 4, c. 27, the mortgagee was in possession of the whole, and not a part only (d), of the estate in mortgage for twenty years without claim by the mortgagor, who was free from disability (e), the mortgagor was barred (f). But even during such possession, if the mortgagee in a letter to a friend (g), such letter proving itself (h), in a settlement between third persons (i), in a surrender to which neither the mortgagor nor his heirs were parties (k), in an assignment (1), in an answer in Chancery (m), by a recital in a deed (n) or in his will (o), treated or alluded to the mortgage as subsisting, or kept an account (p), or demanded the principal money, or received the interest (q), such a possession was no bar, and the title of the mortgagor remained for twenty years, computed from any such act of the mortgagee. The chapter 27 has introduced, in this relation, important alterations. Now, if the mortgagor be in possession for twenty years and upwards, whether the mortgage be legal or equitable (r), without payment of principal or interest, and without acknowledgment in writing of the title of the mortgagee, in the mode expressed in the section 14, the mortgagee is barred at (c) Trent v. Hunt, 9 Ex. 14. (f) 2 Jac. & W. 137. (g) Fenwicky. Read, 6 Madd. 8. (i) 2 Cox C. C. 294. (k) Hansard v. Hardy, 18 Ves. 450. (1) Smart v. Hunt, 4 Mad. 478, n. (a). (m) Procter v. Oates, 2 Atk. 140. (n) Carew v. Johnstone, 2 Sch. & L. 295. (0) Anon., 3 Atk. 314. (p) Vernon v. Bethell, 2 Eden, 114; Anon., 2 Atk. 533. (q) Hatcher v. Fineaux, 1 Lord Raym. 740; Trash v. White, supra. (r) 2 Con. & L. 148. law (s) and in equity (t). The equity of redemption is land in equity, and a foreclosure suit is to recover land in equity, as well as an ejectment is to recover it at law (u); and the 1 Vict. c. 28, is a legislative declaration that it is (a), and treats legal and equitable rights as co-extensive, and both kinds are within the section 24 of chapter 27, and this later act (y). The mortgagee, however, may not be barred of the land at law, and yet may be unable to recover the mortgage money in equity (z). But if the mortgagee does not come as, or in the cha- When mortracter of, plaintiff, to enforce his right, which are the gagee not affected by the only cases provided for by the statute, chapter 27, but act, merely as a defendant in a suit instituted prior to the passing of that statute, by a puisné creditor for the purpose of raising his demand, the statute is inapplicable (a). So, if a mortgagor, without the mortgagee, convey or by act of part of the mortgaged property to a purchaser, and the the mortgagor. mortgagee continues to receive interest on the mort gage, no title is gained by the purchaser against the mortgagee (b). On the other hand, if the mortgagee, whether legal Effect of posor equitable (c), continue in possession for a like period session of of twenty years without giving to the mortgagor any acknowledgment according to the section 14 or the mortgagee. (8) Sect. 2; 1 Vict. c. 28; Doe d. Jones v. Williams, 5 Ad. & E. 291; Doe d. Roylance v. Lightfoot, 8 Mee. & W. 553; Doe d. Palmer v. Eyre, 17 Q. B. 366; Re Muskerry, 9 Ir. Eq. Rep., N. S. 94; Forsyth v. Burton, 8 Ex. 716; Doe d. Badeley v. Massey, 15 Jur. 1033. (t) See Dearman v. Wych, 9 Sim. 570; 8 Ir. Eq. Rep., N. S. 322; Wrixon v. Vize, 2 Con. & L. 138; Gregson v. Hindley, 10 Jur. 383. (u) 2 Con. & L. 149; 2 Hare, 334. (x) 8 Ir. Eq. Rep., N. S. 322. (z) 2 Con. & L. 149. (a) Murphy v. Sterne, 1 Dru. (b) Doe d. Palmer v. Eyre, 17 (c) 2 Con. & L. 138. After becoming owner of the equity of redemption. His possession, before and since the act, property. section 28 (d), the mortgagor is barred, both at law (e), and in equity (ƒ). If, however, both characters be united in the mortgagee, as if he become either the purchaser of the life interest of a tenant for life (g), or the devisee for life, or a tenant in common with others (h), of the equity of redemption, the relation, so long as that union exists, is not affected. Where before the 3 & 4 Will. 4, c. 27, a mortgagee obtained, and for twenty years and upwards continued, of part of the the possession of only part of the land or rent in his mortgage, and the mortgagor retained the possession of the remainder, paying the interest on the mortgage, such possession of the mortgagee did not (i), and it is apprehended will not now, exclude the mortgagor from redeeming such part of the lands in the possession of the mortgagee. For the mortgagee, and not the mortgagor, has the legal title to that part in the possession of the latter, and that possession is under, and keeps open, the mortgage title, and the mortgagor cannot get back the legal title except by filing a bill to redeem, and then there would be a decree for redemption as to one part and not as to the other; which, where the plaintiff succeeds by force of his own title and not on any submission by the defendant, seems very inconsistent, and would be directly contrary to the opinion of Lord King in Rakestraw v. Brewer, Sel. Ca. Ch. 55 (k); and neither the policy and the principle of the 3 & 4 Will. 4, c. 27, nor even the terms of the section 28 of it, are opposed to this view of such case. So in the case last mentioned the possession by the When possesmortgagor of the remainder of the lands, or by a pursion of part by mortgagor chaser for value from him, the interest being satisfied does not, from those in the possession of the mortgagee, will not exclude the title of the mortgagee to the remainder (1). But the possession of part of the land or the rent by —and does, the mortgagee without payment of either rent or the exclude title of debt, or of interest on it within twenty years, does not rest. preserve his title to the other part (m). mortgagee to in gross, In the case of a mortgage of an advowson in gross, In mortgages however, the relation would be preserved for a much of advowsons longer period. For the section 28 of 3 & 4 Will. 4, c. 27, applies where the mortgage is of land or of rent only. Advowsons are the subject of separate provisions (n); and notwithstanding the extreme limit fixed by the section 33, the relation, where the mortgagor is a coparcener, would be preserved for a still longer period. For usurpation by one coparcener (o), or by a stranger (p), upon another coparcener, does not, and will not now, put the other coparcener out of possession, and, as formerly, so now the possession in such a case by one coparcener is the possession of the other. The section 13 of the 3 & 4 Will. 4, c. 27, extends to land and to rent only. So where the mortgage is of lands and also of an ad- —with lands. vowson in gross, the relation, by reason of the advowson, may be still further preserved as to the lands than even in the case of a mortgage of lands only, and where only part of the lands have been in the possession of the mortgagee, and for the like reasons as in the latter case (q). (1) Chinnery v. Evans, 11 H. L. C. 115. (m) Thorpe v. Facey, 13 Jur., N. S. 741; 1 Har. & R. 678, S. C. (n) Sects. 31, 32, 33. (0) 13 Edw. 1, c. 5. (p) 2 Inst. 365; Barker v. Lomax, Willes, 659; 1 H. Bl. 412. (q) Vide supra. |