CH. XX. might, with reasonable diligence, have discovered the PART V. fraud and so first lose the protection of this section, the Court will not regard the capacity of such a person's mind to discover the fraud (1). To deprive To deprive a person of the benefit of the section it would seem not sufficient to show that he might have discovered the fraud by pursuing an inquiry in some collateral matter. It must be shown that there has been something to put him upon inquiry respecting the matter itself, which inquiry if made would have led to the discovery of the real facts (2). In Chetham v. Hoare (3) the plaintiff brought a bill in equity to recover property to which his predecessor had become entitled in 1769, and he alleged that the register containing the entry of a marriage which took place in 1724, and which was a necessary link in his title, had been mutilated for the sake of suppressing evidence, and that this fraud. had not been discovered till 1868; Malins, V.-C., held that evidence of the marriage might, with reasonable diligence, have been obtained long before, and dismissed the bill (4). Malins, V.-C., expressed his opinion in this case that sect. 26 should receive the strictest interpretation (5). The last clause of the section provides for the protection of a bona fide purchaser for value who had no reason to believe that a fraud had been committed. It is said that the same circumstances should be considered sufficient under this proviso to give a purchaser reason to believe that fraud had been committed, as would be held sufficient to enable the person defrauded to discover the fraud with reasonable diligence within the meaning of the earlier part of the section (6). It has been held that a purchaser (1) Manby v. Bewicke, 3 K. & J. 342. (2) Sturgis v. Morse, ubi supra. (3) L. R. 9 Eq. 571; 39 L. J. Ch. 376. (4) See Lawrance v. Norreys, 15 App. Cas. 210. In re Jennens. Willis v. Earl Howe, 50 L. J. Ch. 4; 29 W. R. 70; Willis v. Earl Howe, 41 W. R. 433. (5) L. R. 9 Eq. at p. 577. (6) Sturgis v. Morse, ubi supra. PART V. for value who, though himself ignorant of the fraud, con CH. XX. Acquiescence, &c. 3 & 4 Wm. IV. c. 27, s. 27. tracts through an agent who knows of the fraud, cannot protect himself under the proviso to sect. 26 (1). The 27th section of 3 & 4 Wm. IV. c. 27 provides that Courts of Equity shall have power to refuse relief before the lapse of the statutory period of limitation in all cases in which, on account of the plaintiff's acquiescence or on any other ground, it would be inequitable that such relief should be granted. That section is as follows: "Provided always that nothing in this Act contained shall be deemed to interfere with any rule or jurisdiction of Courts of Equity in refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by virtue of this Act." No new effect is given by this section to acquiescence, but the rules of equity on the subject are left as they were before. This section was only necessary to make it clear that the statutory limitations applicable to suits in equity were not intended to interfere with such rules. The doctrines of equity on this subject are discussed above (2), and it will be sufficient to say here, that by acquiescence is not meant simple laches or omission to prosecute a remedy. A person does not acquiesce in a wrong by merely delaying to enforce his right; but if he lies by with full knowledge of his rights, and tacitly allows conduct which is inconsistent with them, and thereby induces another person to incur expense and alter his position, or leads innocent persons to gain interests which would be prejudiced by the subsequent enforcement of his right, he will be precluded from questioning in equity acts which he has himself authorised by his conduct. Acquiescence imports knowledge, for a man cannot be said to acquiesce in that which he did not know; and in the case of a breach of trust especially there must be full knowledge, and a cestui que trust can(1) Vane v. Vane, L. R. 8 Ch. 383. (2) See ante, Part IV. Ch. II. p. 263. CH. XX. not be bound by acquiescence unless he has been fully PART V. informed of his rights, and of all the material facts and circumstances of the case (1). (1) See ante, Part IV. Ch. II. p. 266, et seq.; Duke of Leeds v. Earl of Amherst, 2 Phillips, 123; Life Association of Scotland v. Siddal, 3 De G. F. & J. 58, 74; 7 Jur. N. S. 787; Bright v. Legerton, 29 Beav. 60. See also Browne v. Cross, 14 Beav. 105, and Rossiter v. Rossiter, 14 Ir. Ch. R. 247; De Bussche v. Alt, 8 Ch. D. 286. In re Cross. Harston v. Tenison, 20 Ch. D. 109. CH. XXI. Limitation of mort gagee's right of entry. CHAPTER XXI. LIMITATION OF TIME AS BETWEEN MORTGAGOR AND MORTGAGEE (7 WM. IV. & 1 VICT. c. 28, 37 & 38 PART V. THE right of a mortgagee to enter upon the mortgaged property or to bring an action for its recovery being a legal right such as is spoken of in the 2nd and 3rd sections of 3 & 4 Wm. IV. c. 27, a mortgagee would under those sections be barred twelve years after the right had accrued to himself or some one through whom he claims. It is clear, however, that a mortgagee, though in law the assignee of the entire legal estate, is really, and according to the intention of the parties, in a very different position. It is generally contemplated by both parties that the mortgagor shall remain in possession, and that the land shall only be a security for the payment of the principal and interest; and as long as such interest is paid to the mortgagee, he is guilty of no real laches in not entering on the estate, and hence in ordinary circumstances the possession of a mortgagor was not before the Act 3 & 4 Wm. IV, c. 27 considered adverse to the mortgagee (1). Effect of payment of interest. No special provision was made by the statute 3 & 4 Wm. IV. c. 27 for the case of a mortgagee out of possession, and in the case of Doe d. Jones v. Williams (2) doubts arose whether the payment of interest by the (1) Doe d. Jones v. Williams, 5 A. & E. 291; Watkins' Conveyancing, 8th ed. p. 14. (2) 5 A. & E. 291. CH. XXI. mortgagor would preserve the mortgagee's right from PART V. being barred without his entering on the land or obtaining a written acknowledgment of title. To remove these doubts, the Act 7 Wm. IV. and 1 Vict. c. 28 was passed, by which, as amended by 37 & 38 Vict. c. 57, it is enacted as follows: & 1 Vict, c. 28. "It shall and may be lawful for any person entitled to 7 Wm. IV. or claiming under any mortgage of land, being land within the definition contained in the 1st section of the said Act" (i.e. 3 & 4 Wm. IV. c. 27), " to make an entry or bring an action at law, or suit in equity, to recover such land at any time within twelve years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twelve years may have elapsed since the time at which the right to make such entry or bring such action or suit in equity shall have first accrued, anything in the said Act notwithstanding." It is clear that this section applies to foreclosure actions as well as to actions of ejectment, so that time will begin to run afresh in both cases from payment of interest due under the mortgage. The payment of principal or interest must be by a person liable as mortgagor or by some person on his behalf. Receipt of rent from the tenant of the mortgaged property is not payment of interest or part payment of principal so as to take the case out of the statute (1). Payment by a person who under the terms of the mortgage-contract is entitled to make a payment and from whom the mortgagee is bound to accept a tender for the defeasance or redemption of the mortgage is a payment sufficient to prevent the statute from running in favour of the mortgagor (2). The payment of principal or interest must also be made to a person entitled to receive it as mortgagee. (1) Harlock v. Ashberry, 19 Ch. D. 539. |