C. A. 1897 V. FRANCE. claiming under him, and did not begin to run again as long as the interest on the mortgage was regularly paid. The plaintiff having paid off the mortgage to Robinson, the latter has THORNTON become a bare trustee for him, and he also is a person claiming under a mortgage within the Act of 1837, and his title as such is consequently not statute-barred. In Doe v. Eyre (1) it was held that the mortgagee was not barred, although the mortgagor and mortgagee together had been out of possession for more than twenty years, and Lord Campbell C.J. said in reference to the effect of the Act of 1837: "A case may be put, where a person who has occupied as tenant by sufferance nearly twenty years, without payment of rent or written acknowledgment, might be deprived of the benefit of the Statute of Limitations by the owner mortgaging the premises and going on, for a great many years afterwards, paying interest to the mortgagee. But it cannot be considered to have been the object of the Legislature to protect the interest of such a person. The mortgagor certainly may, in some cases, gain a consequential advantage by our construction of the statute, although it was passed for the security of mortgagees. Still, without this, the security intended to be given. to mortgagees cannot be enjoyed." The decision in the case of Doe v. Massey (2) is directly in favour of the plaintiff. It was there held that, where, on a purchase of lands which were under mortgage, the purchaser paid the principal and interest due on the mortgage, and took a conveyance, in which the mortgagor and mortgagee joined, of the premises and of the mortgagor's equity of redemption and all the residue of his interest, the purchaser was a person "claiming under" a mortgage within the Real Property Limitation Act, 1837, and that the twenty years' limitation under the Real Property Limitations Act, 1833, ran from the paying off of the mortgage and interest. The learned judge should have allowed an amendment by adding Robinson as a co-plaintiff, that being mere matter of form. [They also cited Ford v. Ager (3); Chinnery v. Evans. (4)] (1) (1851) 17 Q. B. 366. (2) 17 Q. B. 373. (3) (1863) 2 H. & C. 279. C. A. 1897 Swinfen Eady, Q.C., and H. Manisty, for the defendants. The proper inference from the evidence is that there was an THORNTON agreement for a partition of the property included in the deed of 1834 between Thomas Senior and Harriet Hallas as far back as 1836, the mother, Susannah Senior, surrendering her life v. FRANCE. interest for that purpose. The learned judge has found upon the evidence that there has been separate possession of the two properties respectively all that time, and there is authority for drawing such an inference as that contended for under such circumstances: see Tidball v. James (1) and Murphy v. Murphy. (2) If the inference of a partition during the mother's lifetime is inadmissible, at any rate the inference should be drawn of a partition on her death in 1856. The plaintiff's title is in any case barred by the Statutes of Limitation (3 & 4 Will. 4, c. 27, ss. 2, 12, and 37 & 38 Vict. c. 57, s. 1). The plaintiff ought not under the circumstances to be allowed to amend by adding Robinson as co-plaintiff; and on the record as it stands he fails to shew any title. His only title was derived from the mortgagor, W. H. Thornton, and that title was clearly barred. Assuming he could have got a good title from Robinson, the mortgagee, he had not done so. Furthermore, any amendment would be unavailing. The Real Property Limitation Act, 1837, was passed for the protection of mortgagees, and persons claiming under a subsisting mortgage, from the apprehended effect upon their titles of the abolition of the doctrine of adverse possession by the Real Property Limitations Act, 1833, which had a retrospective operation; and it was not intended by the statute of 1837 to give to a mortgagee, or a person claiming under him, a fresh right of entry where none would have existed prior to the Act of 1833 see Eyre v. Walsh (3); Heath v. Pugh. (4) Before the Act of 1833, if there was possession adverse to the mortgagor at the date of the mortgage, the Statute of Limitations continued to run against the mortgagee; and the statute of 1837 does not in that case put him in a better position than his 91. (1) (1859) 29 L. J. (N.S.) (Ex.) (2) (1864) 15 Ir. C. L. Rep. 205. (3) (1860) 10 Ir. C. L. Rep. 346. (4) (1881) 6 Q. B. D. 345. C. A. 1897 v. FRANCE. mortgagor. If, on the other hand, the possession was not adverse to the mortgagor, the statute would not have run against the mortgagee. The object of the statute of 1837 THORNTON was to preserve to mortgagees, and those claiming under a mortgage, the position which they enjoyed before the Act of 1833, not to give them a better position; and for this purpose the question whether the possession was adverse as against the mortgagor may still be material. Here the judge has found adverse possession before the mortgage by Harriet Hallas in 1865. Upon the execution of a reconveyance by a mortgagee the mortgage is at an end, and the mortgagor cannot be considered as deriving title from the mortgagee. It was never intended that an owner of land should be able, by means of the Act of 1837, to protect himself from the operation of the Statutes of Limitation. If the construction which the plaintiff seeks to place upon the Act is correct, an owner of land whose title is almost barred by the statute has only to execute a mortgage for a small sum, and then pay it off, it may be, years afterwards, and take a reconveyance, and he will escape from the operation of the Statute of Limitations. The Act of 1837 is for the protection of the interest of a mortgagee or person claiming under a subsisting mortgage. It would therefore apply where a mortgagee or transferee of a mortgage remains such and claims under the mortgage, or sells under his power of sale. But the Act would not apply to a case where a mortgagor whose title is barred himself pays off the mortgage and then conveys, or where a person purchases the equity of redemption from him and then pays off the mortgage. In such a case the purchaser cannot be said to claim under the mortgage. For the reasons already given, neither William Henry Thornton nor the plaintiff can be considered as a person claiming under a mortgage within the Real Property Limitation Act, 1837; and it cannot be denied that, unless that statute applies, the plaintiff must fail. William Henry Thornton must be regarded as deriving title only from the heir of Harriet Hallas, the mortgagor, and not from Owen, the transferee of the mortgage; and, similarly, the plaintiff must be regarded as C. A. 1897 v. FRANCE. deriving title only from William Henry Thornton, and not from Robinson, the mortgagee. That being so, William Henry THORNTON Thornton's title was barred when he mortgaged to Robinson, and Robinson derived no title from him. But, assuming that William Henry Thornton's title was not barred then, the plaintiff's title has been barred by the adverse possession since 1875. Doe v. Eyre (1) does not govern the present case, for there the action was by the mortgagee, and there was no adverse possession at the time when the mortgage was executed. Doe v. Massey (2) is also distinguishable on two grounds: first, because the question whether the possession was adverse at the date of the mortgage was never raised, and it would rather seem upon the facts that it was not adverse; and, secondly, because there the mortgagor and mortgagee joined in conveying simultaneously. In the present case the plaintiff merely purchased and took a conveyance of the equity of redemption from William Henry Thornton, and did not pay off the mortgage till 1892, at which time his title was already barred. It is merely like the case of a mortgagor whose title is barred subsequently paying off a mortgage, which it is submitted does not come within the Act of 1837. If Doe v. Massey (2) is not distinguishable, it is contended that it was wrongly decided, and it is not binding on the Court of Appeal. Scott Fox, in reply. In Eyre v. Walsh (3) the occupier had acquired a title against the mortgagor by virtue of the Statute of Limitations before the Act of 1833, and all that was held in that case was that the Act of 1837 could not be meant to have the effect of recreating a title that was already barred at the passing of the Act of 1833. There cannot be any real distinction for this purpose between cases where the mortgagee joins in the conveyance for the purpose of receiving the mortgage money and conveying the legal estate, as was the case in Doe v. Massey (2), and cases where the purchaser of the equity of redemption afterwards pays off the mortgage and gets in the legal estate. The only effect of such a distinction would be that the purchaser must get the legal estate conveyed to (1) 17 Q. B. 366. (2) 17 Q. B. 373. (3) 10 Ir. C. L. Rep. 346. somebody else on trust for him, and then he would be safe. The plaintiff is in the same position substantially as if Robinson had joined in the conveyance to him in 1890. It is submitted that the Court cannot draw the inference that there had been an agreement for partition and surrender of the mother's life estate in 1836 as suggested. No such point was raised by the pleadings or at the trial. Cur. adv. vult. June 3. The judgment of the Court (Lord Esher M.R., A. L. Smith L.J., and Chitty L.J.) was read by CHITTY L.J. This is an appeal by the plaintiff, Thomas Thornton, against the judgment of Grantham J., before whom the action was tried without a jury. He found the facts in favour of the defendants and gave judgment for them accordingly. The writ was issued on July 25, 1896. By his statement of claim the plaintiff claimed a declaration that he is entitled as tenant in common in fee to an equal undivided moiety of the Foresters' Arms with the gardens and outbuildings thereto belonging, and the rights of way and other privileges enjoyed therewith; and he asked for a partition on the footing of this declaration. On the plan produced at the trial, and admitted to be substantially accurate, the property claimed is coloured green; it includes the Foresters' Arms, which is a beerhouse, the garden, and also a field. The other property shewn on the plan is coloured as to the greater part yellow; the remainder is coloured pink. The property coloured yellow consists of a cottage (which appears to be known as Hallas' Cottage) adjoining the Foresters' Arms, of a garden at the back of the cottage divided by a hedge from the garden of the Foresters' Arms, and of garden-ground adjacent to the field coloured green. The Foresters' Arms and Hallas' Cottage are about the same size, and the green garden and field are approximately of the same area as the gardens coloured yellow. The Foresters' Arms by reason of its licence is now of greater value than C. A. 1897 THORNTON V. FRANCE. |