CH. XXL

PART V. An administrator who is also one of the next of kin of the intestate has a right to appropriate to himself a part of the estate of the intestate without any agreement with the other next of kin and without any deed or writing; where the administrator of an intestate mortgagee appropriated to himself the mortgage as his share of the estate without any such agreement or deed or writing, and during his life received the interest from the tenant for life of the equity of redemption, and after the administrator's death his personal representatives continued to receive the interest, it was held that the payments of interest to his personal representatives were made to the right persons so as to prevent the operation of the statute (1). In this case the payments to the administrator himself were on other grounds sufficient to prevent the operation of the statute, namely, as made to the personal representative of the deceased mortgagee.

Mortgages of rent are

not within

& 1 Vict.

c. 28.

The beneficial saving of the Act 7 Wm. IV. and 1 Vict. c. 28 is confined to mortgages of "land," as defined by 7 Wm. IV. the 1st section of 3 & 4 Wm. IV. c. 27, that is, to mortgages of corporeal hereditaments and of tithes in the hands of any person except spiritual and eleemosynary corporations sole. The object of this restriction is not clear; rent-charges may be, and sometimes are, the subject of mortgage, and it is hard to point out any reason why mortgagees of land or tithes should by receiving interest retain their right to bring an action to recover such land or tithes, and why, on the other hand, the mortgagee of a rent-charge should not by receiving interest retain his right to recover the rentcharge by distress.

The Act 7 Wm. IV. and 1 Vict. c. 28 does not in words take away from the mortgagee of a rent-charge any saving of his rights, which payment of interest might have effected under 3 & 4 Wm. IV. c. 27; but, as

(1) Barclay v. Owen, 60 L. T. 220.

CH. XXI.

mortgages of rent are clearly not included in the PARt V. provisions of 7 Wm. IV. and 1 Vict. c. 28, and there is no section in 3 & 4 Wm. IV. c. 27 which gives to the receipt of interest the effect of preserving the mortgagee's right, it may be considered pretty clear that receipt of interest on a debt secured by a mortgage of rent-charge will not have the effect of keeping alive the mortgagee's right to distrain for the rent-charge on the land out of which it issues.

In some circumstances a mortgagor in possession is considered to be in law tenant at will to the mortgagee (1), and in such a case it would seem that time cannot run against the right of the mortgagee until the tenancy at will has been properly determined, as the 7th section of 3 & 4 Wm. IV. c. 27 does not apply to such a case (2), and at common law the mortgagee could not bring ejectment without first having determined the tenancy. But the proviso to sect. 7 of 3 & 4 Wm. IV. c. 27 that a mortgagor is not to be deemed a tenant at will within the meaning of that clause to his mortgagee does not apply when the mortgagor has paid the mortgage debt and is in possession of the property but without a reconveyance having been made to him; in such a case, on payment of the mortgage debt, the mortgagor becomes tenant at will to the mortgagee within the meaning of the 7th section, and the mortgagor's title to the legal estate will be extinguished in thirteen years from the payment (3).

When the

right c

crues to

If, at the time of making the mortgage, the mortgagor himself is in possession of the mortgaged property, and there be a provision in the mortgage deed for quiet the mortpossession by the mortgagor until default upon a certain day, and the mortgage deed be executed by the mortgagee, it operates as a redemise by the mortgagee

(1) Watkins' Conveyancing, 8th ed. p. 13.
(2) See ante, Part V. Ch. VIII. p. 341.
(3) Sands to Thompson, 22 Ch. D. 614.

gagee.

CH. XXI.

PART V., until the day named, and till then ejectment will not lie, and time therefore will not begin to run till that day (1). If, however, there is no such provision, or if the deed is not executed by the mortgagee, the right of the mortgagee accrues immediately upon the execution of the mortgage, and this will be so even though the mortgage contain a covenant that it shall be lawful for the mortgagee to enter after default made, for this does not amount to a redemise until default (2).

Order of foreclosure.

An order of foreclosure absolute obtained by a legal mortgagee vests the ownership and the beneficial title to the land in him for the first time and a fresh right accrues to him at the date of the order, and an action brought to recover the land within twelve years of the order is not barred, although more than twelve years have elapsed since the legal estate was conveyed to the mortgagee and since the last payment of principal or interest secured by the mortgage (3).

If the mortgagor be himself out of possession at the date of the mortgage, whether the property be in the occupation of a tenant or of some one holding without a title, it would seem clear that the period of limitation must, as against the mortgagee, be calculated from the time at which, if no mortgage had been executed, the statute would begin to run against the title of the mortgagor, or those through whom he claims; that is, from the time at which, according to the 3rd and following sections of 3 & 4 Wm. IV. c. 27, the right of entry or action is in the circumstances of each case deemed to have first accrued. It is, however, settled that the effect of 7 Wm. IV. and 1 Vict. c. 28 is that payment of interest on the mortgage debt sets time running afresh in favour

(1) Wilkinson v. Hall, 3 Bingh. N. C. 508; Doe d. Roylance v. Lightfoot, 8 M. & W. 553, 564; aud cases collected, Cole on Ejectment, 463 et seq.

(2) Doe d. Roylance v. Lightfoot, ubi supra.

(3) Heath v. Pugh, 6 Q. B. D. 345; 7 App. Cas. 235.

CH. XXI.

of the right of all persons claiming under the mortgage, PART V.
not only as against the mortgagor who pays the interest,
but also as against all persons in possession, even though
the possession has been such that they would, by means
of the statute, have acquired a good title against the
mortgagor (1). This, however, would of course not be
the case if before the making of the mortgage the period
of limitation had run out against the mortgagor, for, his
title being extinguished by the 34th section of 3 & 4
Wm. IV. c. 27, nothing would pass to the mortgagee
by the mortgage, and payment of interest on the debt
secured by such mortgage could not revive an extinct
title (2).

In the case of a mortgage of a reversionary interest
time does not begin to run against the right of the
mortgagee to bring a foreclosure action until the interest
falls into possession (3).

The Act 7 Wm. IV. and 1 Vict. c. 28 preserves the right of entry as if the Act 3 & 4 Wm. IV. c. 27 had never passed, but it does not give to a mortgagee a right of entry where, before the passing of the last-mentioned Act, that right had been taken away by adverse possession under the old law (4).

sons claim under a

A person who paid off a mortgage debt and took at What peronce a conveyance of the legal estate in the mortgaged property from the mortgagee and of the equity of mortgage. redemption from the mortgagor was held to be a person claiming under a mortgage of land within the meaning

(1) Doe d. Palmer v. Eyre, 17 Q. B. 366; 20 L. J. Q. B. 431; Ford v. Ager, 2 H. & C. 279; 32 L. J. Exch. 269; 8 L. T. N. S. 546; Doe d. Baddeley v. Massey, 17 Q. B. 373; 20 L. J. Q. B. 434; Eyre v. Walsh, 10 Ir. C. L. R. 346.

(2) See judgment of Lord Campbell in Doe d. Palmer v. Eyre, 17 Q. B. 372; 20 L. J. Q. B. 434; Hemming v. Blanton, 42 L. J. C. P. 158.

(3) Hugill v. Wilkinson, 38 Ch. D. 480; In re Lake's Trusts, 63 L. T. 416. In re Conlan's Estate, 29 L. R. Ir. 199. In re Hancock. Hancock v. Berrey, 59 L. T. 197.

(4) Eyre v. Walsh, ubi supra.

CH. XXI.

How far payment of interest

affects a

stranger in

PART V. of the Act 7 Wm. IV. and 1 Vict. c. 28 (1). It seems clear that such a person claims under a mortgage to the extent of the interest which he has purchased from the mortgagee, but it is not clear that his claim stands on the same footing with regard to that interest which he purchased or affected to purchase from the mortgagor. A mortgage may often represent but a very small portion of the value of the property; therefore, if a stranger has been in possession for twelve years, but possession. interest has been meanwhile paid to the mortgagee, an important question may arise to what extent the Act 7 Wm. IV. and 1 Vict. c. 28 preserves to the mortgagee any right against the person in possession. In such a case the person in possession has gained a complete title to the land, subject only to the saving of the Act 7 Wm. IV. and 1 Vict. c. 28; the right saved by that Act is "the right of the mortgagee to make an entry or bring an action to recover the land," that is, to recover the whole legal estate subject to the right in equity of any other person interested in the property to pay off the mortgage and discharge the mortgagee's claim. It has, we believe, never been decided whether a person who claims a title by long possession has such a right to redeem, but, if he has, then any one who purchases from the mortgagee, as in Doe d. Baddeley v. Massey (2), would only gain a title to the mortgagee's interest. In support of this view it may be urged that the intention of the Act 7 Wm. IV. and 1 Vict. c. 28 was only to preserve the rights of mortgagees; therefore, if the title of a person who has had undisputed possession of land for twelve years is affected by the operation of that Act to any greater extent than is necessary for carrying out the intention of the Act, it is so far defeating the intention

(1) Doe d. Baddeley v. Massey, 17 Q. B. 373; 20 L. J. Q. B. 434. See also Ford v. Ager, 2 H. & C. 279; 32 L. J. Exch. 269; 8 L. T. N. S. 546.

(2) 17 Q. B. 373; 20 L. J. Q. B. 434.