CHAPTER XXII. SUMMARY OF THE DIFFERENT STATUTES OF LIMITATION IN the foregoing pages there have been discussions on PART V. gage debt. The time within which the principal of the mortgage Recovery debt can be recovered out of the land is limited by of mortof principal 37 & 38 Vict. c. 57, s. 8, to twelve years (formerly twenty under 3 & 4 Wm. IV. c. 27). The time for recovering from a mortgagor a mortgage debt secured by a bond or covenant is, according to recent decisions, limited also now to twelve years (1). of interest. The 42nd section of 3 & 4 Wm. IV. c. 27 provides a Recovery limitation for the recovery of arrears of interest on a debt charged upon land; and the period allowed for its recovery by that section is six years, unless a prior incumbrancer has been in possession of the mortgaged land within a year before action, in which case all arrears of interest may be recovered which have become due during the possession of such incumbrancer. This enactment extends to all the mortgagor's remedies for the (1) Sutton v. Sutton, 22 Ch. D. 511; Fearnside v. Flint, 22 Ch. D. 579; In re Frisby, Allison v. Frisby, 43 Ch. D. 106. CH. XXII. PART V. recovery of arrears of interest on a mortgage debt, including a foreclosure action, unless there is a covenant or bond by which the mortgagor is expressly bound to pay interest on the debt; and in that case the remedy for the recovery of the interest by action is according to the authorities excepted out of the 42nd section of 3 & 4 Wm. IV. c. 27, and is within the 8th section of 37 & 38 Vict. c. 57, and accordingly the mortgagee, though he can recover only six years' arrears out of the land, can recover twelve years' arrears by the personal remedy of an action on the bond or covenant against the mortgagor. Where the covenant for payment only extends to the principal, the interest recoverable even in an action on the covenant is, it seems, limited to six years' arrears (1). Arrears of interest in redemp tion actions. Right to tack arrears. It is a somewhat doubtful question whether a mortgagor in order to redeem is bound to pay more than six years' arrears of interest, but the better opinion seems to be that the rights of the parties in foreclosure and redemption actions are the same, and that a mortgagor is entitled to redeem on payment of six years' arrears only (2). In an action for the redemption of a mortgage of a reversionary interest in personalty, there seems no statutory limit for the recovery of arrears of interest (3). It seems that where there is in a mortgage deed a covenant to pay, and a redemption action is instituted by the mortgagor's heirs, the mortgagee will be allowed to tack the difference between the six and twelve years' arrears of interest to the mortgage debt as a specialty debt, subject of course to all the ordinary incidents of tacking independent specialty debts to mortgage debts, and therefore without prejudice to mesne incumbrancers (4). A mortgagee would probably, though this is not so clear, be allowed to do this in a foreclosure action instituted by him against the mortgagor's heirs (1). It would seem, however, that in both cases the question of tacking ought to be actually raised on the pleadings (2). A mortgagee who exercises a power of sale and has in his hands the proceeds, is entitled to deduct from the money in his hands the principal and all arrears of interest due, but whenever a mortgagee has to resort to an action in order to recover arrears of interest due, he cannot recover more than six years' arrears; but a petition by the mortgagee for the payment out of court of the proceeds of the sale which have been paid into court, is not such a proceeding as to limit the mortgagee to six years' arrears (3). closure actions. Although a foreclosure suit is clearly within sect. 42 of Fore3 & 4 Wm. IV. c. 27 (4), it is also a suit to recover land within the 24th section of that Act (5), and the period of limitation is twelve years; time, except in the case of mortgages of rent-charges, would be set running afresh by part payment of principal or payment of interest, in consequence of the provisions of 7 Wm. IV. and 1 Vict. c. 28 (6). The mortgagee's right to enter on mortgaged land is a legal right within the meaning of the 1st section of 37 & 38 Vict. c. 57 (formerly the 2nd section of 3 & 4 Wm. IV. c. 27), and will, accordingly, like any other legal right to land, be barred at the end of twelve years after the right accrued to the mortgagee himself, or some one through whom he claims, subject only to the effect of part pay (1) See ante, Part III. Ch. IV. p. 210. See also Watts v. Symes, 1 De G. M. & G. 240; and Selby v. Pomfret, 1 John. & Hem. 336; on appeal, 7 Jur. N. S. 835. (2) See ante, Part III. Ch. IV. p. 211. (3) See ante, Part III. Ch. IV. p. 209. (4) Part III. Ch. IV. p. 195. (5) Part III. Ch. I. p. 164. (6) Part V. Ch. XXI. p. 455. PART V. ment of principal or payment of interest, under the provisions of 7 Wm. IV. and 1 Vict. c. 28 (1). CH. XXII. Effect of acknow payments and dis the rights of mort gagees, The Acts 3 & 4 Wm. IV. c. 27, 3 & 4 Wm. IV. c. 42, ledgments, and 37 & 38 Vict. c. 57, which provide limitations applicable to the recovery of the principal and interest of abilities on mortgage debts, are all qualified by provisions for the enlargement of the term of limitation when a written acknowledgment of the debt has been given; and 3 & 4 Wm. IV. c. 42, s. 5, and 37 & 38 Vict. c. 57, s. 8, give a like effect to a part payment of principal or interest. The enactments which provide limitations for the recovery of land are also qualified by provisions for the enlargement of the time of limitation by a written acknowledgment, and also by part payment of, or payment of interest on the mortgage debt. It does not, however, follow that an acknowledgment or part payment, which is sufficient to take a case out of one enactment, is sufficient to satisfy the provisions of another. The sufficiency of any such acknowledgment or payment must, it is clear, be considered with reference to the requirements of the particular enactment, the effect of which it is desired to avoid. And the effect of the existence of any disability on the different rights of a mortgagee must be decided in the same way. Hence it may be worth while to point out how the different rights of mortgagees are affected by the principal provisions with respect to acknowledgments and payments contained in the different enactments applicable to the various remedies for the recovery, not only of the money, but the land, and also the principal provisions with regard to disabilities applicable in the different cases. And from this it will be seen that there may be many states of circumstances under which some or one of the remedies of a mortgagee may be barred, while others are not. Acknowledgments or payments. First, with regard to acknowledgments and payments on account of principal or interest. (1) See ante, Part V. Ch. XXI. p. 455. CH. XXII. In actions governed by 3 & 4 Wm. IV. c. 42, s. 3, PART V. acknowledgments in writing must be signed by the mortgagor or his agent, but need not be made to the mortgagee; they are sufficient if made to a third party (1). In actions governed by 37 & 38 Vict. c. 57, s. 8, and 3 & 4 Wm. IV. c. 27, s. 42, the acknowledgment must be signed by the mortgagor and his agent, and made to the mortgagee or his agent (2). In actions to recover the land governed by 37 & 38 Vict. c. 57, s. 1, and 3 & 4 Wm. IV. c. 27, s. 24, an acknowledgment of title must be signed by the mortgagor in possession himself (not by his agent), and made to the mortgagee, or his agent (3). An acknowledgment made after the commencement of an action governed by 3 & 4 Wm. IV. c. 42, s. 3, or 37 & 38 Vict. c. 57, s. 8, is of no avail; but in actions governed by 3 & 4 Wm. IV. c. 27, s. 42, an acknowledgment made after the commencement of action has the same effect as if made before (4). In actions governed by 3 & 4 Wm. IV. c. 42, s. 3, an acknowledgment or part payment, or payment of interest by one of several parties liable on the specialty, binds all parties liable, including, when the mortgagor is dead, all persons interested in his real estate (5). In actions governed by 37 & 38 Vict. c. 57, s. 8, an acknowledgment or part payment, or payment of interest by a person entitled to the equity of redemption of part of the land mortgaged, binds every person entitled to the equity of redemption in any other part of the land included in the mortgage; but it is not so clear whether the same principle holds good where different persons have different interests in the equity of redemption in the same land, or (1) See ante, Part II. Ch. IV. p. 156, et seq. (2) See ante, Part III. Ch. V. p. 221, et seq. (3) See ante, Part V. Ch. XIII. pp. 380, 382, et seq. (4) Sec ante, Part II. Ch. IV. p. 153, and Part III. Ch. V. p. 220. (5) See ante, Part II. Ch. IV. p. 158. |