CHAP. XXXIX. Acknowledgment under statute 3 & 4 Will. IV. Retrospective effect of of statutory Redemption was allowed after forty years' possession, on evidence of a contract entered into within seven years preceding the filing of the bill, by the heir of the mortgagee, for purchase of the equity of redemption (u), and where bills of foreclosure had been filed (v). In order to take a case out of the operation of the statutes now in force, so as to preserve the right of redemption, notwithstanding possession by the mortgagee, sect. 28 of the Act of Will. IV. requires that an acknowledgment must in the meantime have been given of the title of the mortgagor, or of his right to redemption to the mortgagor, or to some person claiming his estate, or to the agent of such mortgagor or person, in writing signed by the mortgagee or some person claiming through him. This section has been held to be retrospective in its operation as regards acknowledgments (x). It was held under the statute of Jac. I. that an acknowledgment made after twenty years' possession by the mortgagee would revive the mortgage and restore the equity of redemption (y). And in one case, since the statute of Will. IV., the Lord Justices Knight-Bruce and Turner expressed their opinion that the rule still clearly applied, and they decided accordingly (≈). The correctness of this decision was doubted in a recent case (a), and seems open to question. According to the express language of sect. 28, a case does not come within the exception unless the acknowledgment is given "in the meantime," which would seem to be capable of no other construction than as meaning within twelve years after the mortgagee entered into possession. This question is not affected by the decisions on extinguishment of title under sect. 34 (b), inasmuch as that section applies only to entries and actions for recovery of land, and it has been seen that an action for redemption is not an action to recover land for the purposes of the Statute of Limitations (c). (u) Conway v. Shrimpton, 5 Bro. P. C. 187. (v) Palmer v. Jackson, 5 Bro. P. C. 281. (x) Batchelor v. Middleton, 6 Ha. 75. (y) Pendleton v. Booth, 1 De G. F. & J. 81. (z) Stansfield v. Hobson, 3 De G. M. & G. 620. (a) Markwick v. Hardingham, 15 Ch. D. 339, at p. 346, C. A. See Brassington v. Llewellyn, 27 L. J. Ex. 297. See also the cases cited post, p. 982, on the similar phrase in sect. 40 of 3 & 4 Will. IV. c. 27. (b) See post, p. 1073. The acknowledgment must be made to the mortgagor or those CHAP. XxxIx. claiming under him, or the agent of one of such persons. An acknowledgment of the mortgagor's title by a recital in an assignment of the mortgage, but to which the mortgagor is not a party, is not sufficient to stop the statute from running (d). But it seems to be otherwise if the mortgagor is a party (e). An acknowledgment made to the grandfather, tenant by the curtesy, of the right of his infant granddaughter, entitled as heir to the inheritance, has, however, been held to be sufficient, as being made to her agent, though the acknowledgment would otherwise seem to have been sufficient, as being made to the particular tenant of the equity of redemption (ƒ). An acknowledgment to a bankrupt is not sufficient, as the bankrupt is not the agent of his trustees (g). A letter written by a mortgagee to his own solicitor would not amount to an acknowledgment (1⁄2). To whom the acknowledgment must be given. ment must be Formerly, as has been seen (k), a parol acknowledgment would Acknowledghave been sufficient to keep alive the equity of redemption, but in writing. now the acknowledgment must be in writing signed by the mortgagee or the person claiming under him. acknowledg sufficient. Whatever expressions made by parol would have amounted Whatbefore the statute to an acknowledgment, will still be sufficient ment is if in writing, and if the other requirements of the statute are duly complied with (7). Any expression, therefore, referring to the estate as mortgaged, or to the person entitled to the equity of redemption, and expressing a readiness to settle the account, or referring to a proposed arrangement for accounting or for paying off the mortgage debt, will be a sufficient acknowledgment (m). No particular form is necessary, nor need the amount be stated (n). The acknowledgment may be by affidavit in an action (o); in a schedule (0); or by an answer to interrogatories (0); or by a letter or other writing. (d) Lucas v. Dennison, 13 Sim. 584. (e) See Batchelor v. Middleton, 6 Ha. 75. (f) Trulock v. Robey, 12 Sim. 402. (g) Markwick v. Hardingham, 15 Ch. D. 339, 352, C. A. (h) Stansfield v. Hobson, 3 De G. M. & G. 620. (k) Ante, p. 748. (1) Stansfield v. Hobson, 3 De G. M. & G. 620. (m) Fish. Mtg. 694. (n) Trulock v. Robey, 12 Sim. 402; Lord St. John v. Boughton, 9 Sim. 219; Prance v. Sympson, Kay, 678. (0) Blair v. Nugent, 3 J. & L. 658; see Sug. R. P. St. 130. CHAP. XXXIX. ment must be explicit. The acknowledgment must, however, amount to a clear Acknowledg- and unequivocal admission that the mortgagee holds under a mortgage title (p). A letter denying the right of redemption claimed, but stating that, even if the mortgagor were entitled to redeem, he would derive no benefit from the account, was held to be insufficient (q). Accounts. Acknowledgment by agent of mortgagee. Joint mortgagees. The fact of the mortgagee treating himself as mortgagee and accounting, but without any signature of the accounts according to the Act, is not sufficient (r); and it has been said the commencement of an action of foreclosure would not be sufficient (s); but under the old practice the mere filing of a bill for foreclosure was sufficient, though service might not have been effected till long afterwards (t). A mere demand without process will not suffice (u). Under sect. 28 no force is given to an acknowledgment by an agent of the mortgagee, which seems to stand on the same footing as under another statute (a), whereby an acknowledgment of a debt must be made in writing signed by the party chargeable therewith. Under that statute it has been held that the signature of an agent of the debtor was not sufficient (y); but now, in cases falling within that statute, an acknowledgment by an agent is rendered sufficient by sect. 13 of the stat. 19 & 20 Vict. c. 97. Where there is a mortgage to several jointly, there must be a joint acknowledgment (≈). (p) Whiting v. White, G. Coop. 1; Reeks v. Postlethwaite, G. Coop. 161; Barron v. Martin, G. Coop. 189. (a) Thompson v. Bowyer, 9 Jur. N. S. 863. (r) Baker v. Wetton, 14 Sim. 426. (t) Coppin v. Gray, 1 Y. & C. C. C. 303; Hele v. Lord Bexley, 20 Bear. 127. (u) Hodle v. Healey, 1 V. & B. 536. (x) 9 Geo. IV. c. 14, s. 1. (y) Hyde v. Johnson, 2 Bing. N. C. 776; Clark v. Alexander, 8 Sc. N. R. 165. (z) Richardson v. Younge, L. R. 6 Ch. A. 478. CHAPTER XL. OUT OF WHAT FUND A MORTGAGE DEBT IS PAYABLE. SECTION I. PRIMARY LIABILITY OF PERSONALTY UNDER FORMER LAW. i.-General Rule as to Mortgages of Realty before Locke King's Alteration Act.—The law relating to the primary liability of the personal Locke King's of the law by estate of a deceased mortgagor to payment of a mortgage debt in Act, &c. exoneration of real estate comprised in the mortgage has been altered by the statute commonly known as Locke King's Act (a), which statute, however, does not apply to the estates of persons who died before the 1st of January, 1855, nor so as to affect the rights of any person claiming under or by virtue of any will, deed, or document made before that date. Moreover, neither that Act nor either of the amending Acts (b) have any application to mortgages of personalty other than leaseholds. The rule of law which prevailed before Locke King's Act Former rule was that, as between the heir or devisee of a deceased mort- making personalty the gagor of the one part, and his personal representatives of the primary fund. other part, the personal estate was primarily liable to the payment of a debt secured by mortgage of real estate, and must have indemnified the real estate against the debt, so as to exonerate the mortgaged lands. This rule was of general application, and prevailed, subject to exceptions to be hereafter noticed, whether the lands in mortgage devolved on the heir-at-law as hæres natus (c), or on a general devisee as hæres factus (d), or on a particular devisee (e); in either case the (a) 17 & 18 Vict. c. 113, post, p. 767. (b) 30 & 31 Vict. c. 69; 40 & 41 Vict. c. 34. See infra, p. 769. (c) Cope v. Cope, 2 Salk. 449; Howel v. Price, 1 P. Wms. 292; Chester v. Powell, 7 Jur. 389. VOL. I.-R. (d) Lutkins v. Leigh, Forrester, Cas. t. Talb. 54; Galton v. Hancock, 2 Atk. 436. (e) Pockley v. Pockley, 1 Vern. 36; Johnson v. Milksopp, 2 Vern. 112. And see Galton v. Hancock, sup. 3 c CHAP. XL. Contrary intention might be express or implied. Intention to exempt personal estate necessary. Parol evi personal estate, in the absence of evidence of intention to the contrary, became the primary fund, and exonerated the real estate, descended or devised, from the debt. And this rule held good even in the case of a Welsh mortgage, where the mortgagee cannot foreclose, nor bring an action for the sum lent (f); and whether, in the case of an ordinary mortgage, there was a covenant or bond accompanying the mortgage or not (g); and applied equally to the case of a devise by a mortgagee who had created a sub-mortgage (h). ii.-Exemption of Personalty by Expressions of Contrary Intention. The operation of the rule above referred to might, however, always have been excluded by contrary intention to be gathered expressly (i) or by plain implication () from the language of the mortgagor's will that the mortgage debt should be borne by the mortgaged property, or that the debts generally should be paid out of a specific fund in exoneration of the general personal assets; for in construing a direction for payment of debts the expression "debts" was, until the passing of the statute 40 & 41 Vict. c. 34, deemed to include mortgage debts (7). But it was not sufficient for a testator to show an intention to charge his real estate with the payment of his debts, whether by a trust for sale limiting a term, or simply charging the estate; he must show an intention to exempt his personal estate (m); though the grounds of this rule would appear to be somewhat weakened since the statute 3 & 4 Will. IV. c. 104, rendering realty assets for the payment of debts. The question was decided only by an examination of the (f) Howel v. Price, 1 P. Wms. 292. And see Longuet v. Scawen, 1 Ves. Sen. 402, 405; Bulwer v. Astley, 1 Ph. 422. (g) Yates v. Aston, 4 Q. B. 182; Allenby v. Dalton, 5 L. J. K. B. 312; King v. King, 3 P. Wms. 358; Cope v. Cope, 2 Salk. 449. (h) See Lockhart v. Hardy, 9 Beav. 379. (i) Morrow v. Bush, 1 Cox, 185; (k) Ion v. Ashton, 28 Beav. 379; (m) Dolman v. Smith, Prec. Ch. 456; 202; Haslewood v. Pope, 3 P. Wms. 325; Fereyes v. Robertson, Bunb. 302; Walker v. Jackson, 2 Atk. 625; Bridgman v. Dove, 3 Atk. 202; Lord Inchiquin v. French, Amb. 33; Samuell v. Wake, 1 Bro. C. C. 144; Aldridge v. Lord Wallscourt, 1 Ba. & Be. 312; Watson v. Brickwood, 9 Ves. 447, 453; Tait v. Northwick, 4 Ves. 816; Tower v. Lord Rous, 18 Ves. 132; Bootle v. Blundell, 1 Mer. 193; Rhodes V. Rudge, 1 Sim. 79; Walker v. Hardwick, 1 My. & K. 396; Collis v. Robins, 1 De G. & S. 131; Quenell v. Turner, 13 Beav. 240; Davies v. Ashford, 15 Sim. 42. |