CH. XXI. PART V. of the mortgagor to an account and redemption is not a right within the 25th section of 3 & 4 Wm. IV. c. 27, but is within the 7th section of 37 & 38 Vict. c. 57 (formerly the 28th section of 3 & 4 Wm. IV. c. 27), and will be barred after the lapse of twelve years (1). And in such a case, when the mortgagor's right of redemption is barred, the trust for the surplus money is also extinguished (2). Effect of acknowledgment. Where a solicitor, to facilitate a transaction in which he was employed, himself paid off the mortgage debt of a client, and then entered into the receipt of the rents of the property, it was held that he must be treated as having paid the money and received the rents as agent of his client, and time, therefore, did not run in his favour as mortgagee in possession (3). A mortgagor is debarred from bringing a suit to redeem after the expiration of twelve years from the time when the mortgagee entered into possession, unless in the meantime an acknowledgment has been given. Therefore, by the 34th section of 3 & 4 Wm. IV. c. 27, the right and title of the mortgagor to the land or rent for the recovery of which a redemption action might have been brought within twelve years, is extinguished at the expiration of that period. At the end of the period of twelve years, the mortgagee has a perfect title to the property, and the mortgagor is an entire stranger to it, and no subsequent acknowledgment or payment can divest the title of the person who was formerly mortgagee, and transfer it to the person who was formerly mortgagor. This has been decided by the Court of Appeal in Sanders v. Sanders (4), and the case of Stansfield v. Hobson (5), where the opposite view was not ex (1) Locking v. Parker, L. R. 8 Ch. 30; 41 L. J. Ch. 544. In re Alison. Johnson v. Mounsey, 11 Ch. D. 284. (2) Chapman v. Corpe, 41 L. T. 22. (3) Ward v. Carttar, L. R. 1 Eq. 29. (5) 16 Beav. 236; 3 De G. M. & G. 620; 22 L. J. Ch. 657. CH. XXI. pressed but was taken for granted in the decision, PART V. cannot now be regarded as an authority to the contrary. Under the old law, a mortgagee who had been in possession for more than twenty years without making any acknowledgment of the mortgagor's title, held the property discharged of the mortgagor's right to redeem, but by a subsequent acknowledgment the equity of redemption could be revived (1). An acknowledgment in order to keep alive the mort- Acknowledgment gagor's right to redeem must be signed by the mortgagee to a third or other person who has obtained possession claiming party. through him and must be given to the mortgagor or his agent. An acknowledgment given to a third person is of no avail. Thus, where a mortgagee's representatives entered into possession in 1822, and afterwards assigned the mortgage debt and the mortgaged property to a third person by a deed which recited the mortgage and also recited that the equity of redemption had not been barred, and which conveyed the mortgaged property expressly subject to the equity of redemption, it was held in a redemption suit commenced by the mortgagor's heir in 1843, that there was not a sufficient acknowledgment in the deed to make the mortgaged property redeemable (2). And where a mortgagee made an acknowledgment to the mortgagor after the latter had become bankrupt, it was held that, as the mortgagor's estate ceased on his becoming bankrupt, the acknowledgment could not operate to take the case out of the statute (3). But in order to make a third person, to whom an acknowledgment is made, the agent of the person entitled, it is not necessary that such third person should have actual authority to act as agent; it is sufficient that he has acted as agent, and been treated as such by the person making the acknowledgment (4). (1) Pendleton v. Rooth, 1 De G. F. & J. 81, and 29 L. J. Ch. 265. (2) Lucas v. Dennison, 13 Sim. 584. (3) Markwick v. Hardingham, 15 Ch. D. 339. (4) Trulock v. Robey, 12 Sim. 402. PART V. CH. XXI. Acknowledgment by one of two joint mortgagees. Accounts kept by mortgagee in possession. In Richardson v. Younge (1), it was held by Malins, V.-C., and on appeal by Mellish and James, L.JJ., that an acknowledgment by one of two joint mortgagees, who were shown by the deed to be trustees, had no effect at all on the operation of the statute, either as against the whole property or as against a moiety of it; Mellish, L.J., expressed an opinion that the part of sect. 28 of 3 & 4 Wm. IV. c. 27 (now sect. 7 of 37 & 38 Vict. c. 57), which relates to an acknowledgment when there are more mortgagees than one, applies only to cases where there are divided interests. In the case of Baker v. Wetton (2), in which the bill alleged that the mortgagee had kept accounts of the rents received by him, and had otherwise treated and considered himself as mortgagee, a question was raised, but not decided, whether the bar created by twenty years' possession (under 3 & 4 Wm. IV. c. 27) was thereby defeated. This is a question of some importance, and not unlikely to arise again. Lord St. Leonards remarks that such a keeping of accounts by a mortgagee could hardly be held to supply the want of an acknowledgment. "When the right to redeem is barred, no one has a right to inquire how the owner, though formerly a mortgagee, has kept his accounts. The statute intended to put an end to such inquiries (3). It would seem that where the mortgagee has entered into possession, accounts of his receipts of rent can only be used as an acknowledgment if signed by him, and kept not for his own use but for that of the mortgagor, as accounts kept for the mortgagee's own private use are in no sense an acknowledgment given by him to the mortgagor or his agent (4). (1) L. R. 10 Eq. 275; 6 Ch. 478; 39 L. J. Ch. 475; 40 L. J. Ch. 338. (2) 14 Sim. 426. (3) Prop. Stat. p. 117. (4) See In re Alison. Johnson v. Mounsey, 11 Ch. D. 28ł. PART V. CH. XXI. acknow No particular form of acknowledgment would seem to be required any more than in the case of an acknowledgment within the 14th section of 3 & 4 Wm. IV. c. 27, What but any expression in writing from which there may ledgment fairly be implied an admission of the right to redeem in sufficient. the party to whom the expression is communicated, would seem sufficient (1). And in judging whether a document is a sufficient acknowledgment, the Court will look at the circumstances in which it was written, and will construe it in the way in which the writer intended it to be construed by the person to whom it was addressed (2). The 28th section of 3 & 4 Wm. IV. c. 27 retrospec It was decided under the 28th section of 3 & 4 Wm. IV. c. 27, that that section was so far retrospective as to apply to cases where the mortgagee was in possession when the Act passed, and took away from the tive. mortgagor the benefit of acknowledgments made before the passing of the Act, though within twenty years of action brought, if they were not such acknowledgments as to meet the requirements of the 28th section (3). In the case of Batchelor v. Middleton (3) just referred to, the mortgagee had entered into possession in 1816, and the mortgaged property had been assigned in 1827, and again in 1828 by the transferee, the deeds of assignment in each case acknowledging the existence of the equity of redemption. The Act 3 & 4 Wm. IV. c. 27 came into operation on the 31st of December, 1833. It was held that the mortgagor who filed his bill in 1845 was barred of his right to redeem. of mort It should be observed that neither in the 28th section Disability of 3 & 4 Wm. IV. c. 27, nor in the 7th section of 37 & 38 Vict. c. 57, which has now been substituted for it, is (1) See Stansfield v. Hobson, 3 De G. M. & G. 620; 22 L. J. Ch. 657; Thompson v. Bowyer, 9 Jur. N. S. 863. (2) Per Shadwell, V.-C., Trulock v. Robey, 12 Sim. p. 406. (3) Batchelor v. Middleton, 6 Hare, 75. See Towler v. Chatterton, 6 Bingh. 258. gagor. CH. XXI. PART V. there any saving provided for disability on the part of the mortgagor or his heirs in regard to the bar created by those sections; and the provisions of the 16th section of 3 & 4 Wm. IV. c. 27 (now the 3rd section of 37 & 38 Vict. c. 57) do not apply to such a case (1). (1) Kinsman v. Rouse, 17 Ch. D. 104; Forster v. Patterson, 17 Ch. D. 132. |