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Hyde v. Dallaway.

to whom the acknowledgment is to be made as well as of the party to make it; there must be not only a party to redeem but one to be redeemed. The mortgagee became, in effect, the tenant for life of the equity of redemption; the remainderman might therefore properly look upon him as holding in that character, and would not necessarily refer his possession to any other title. It would be a surprise upon the parties interested in the property, after the expiration of the life interest, if they were told that the tenant for life had another and an adverse title, by means of which they were to be barred and the tenant for life to acquire an absolute interest (t). The property was afterwards sold, with a stipulation that the concurrence of the parties interested in the equity of redemption, in the conveyance should not be required, and on a bill for specific performance the purchaser was ordered to pay the costs occasioned by his allegation that the plaintiffs were bound to make a good and marketable title; and a reference to the master to inquire whether a good title could be made, according to the conditions, was directed (u).

The case Hyde v. Dallaway, as an interpretation of the sect. 28 of the 3 & 4 Will. 4, c. 27, is opposed to Browne v. The Bishop of Cork (x), which was not cited. The primary object of that section, which relates exclusively to the rights of mortgagees and is not controlled by the sect. 15 (y), is to limit a time for the redemption of mortgages, and, as a necessary incident to that object, to assign the terminus from which the computation of that time is to be made. That terminus is either the commencement of the possession or the receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, or the time at which an acknowledgment, or, if more than one, the last of

(t) Hyde v. Dallaway, 2 Hare,
528.
(u) Ib.; 4 Beav. 606.

(x) 1 Dru. & Wal. 700.

(y) Browne v. The Bishop of Cork, supra.

them, of the title of the mortgagor or of his right of redemption is given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person in writing signed by the mortgagee or the person claiming through him. In Hyde v. Dallaway the principal ground of the decision seems to have been, not with reference to that primary object, but with reference to the mere incidental fact of the person to be redeemed and the person to redeem having become, even after the period of limitation had commenced, one and the same (z). But in Browne v. The Bishop of Cork, the mortgagee, at the time when his possession commenced, sustained the character of both such persons, and Lord Plunket held, that the case was concluded by this statute, and that the possession of the mortgagee, under such circumstances, barred the persons claiming the equity of redemption. He distinguished the case from Raffety v. King (a), and the other cases establishing the principle recognized and acted upon in Hyde v. Dallaway. In the latter case the mortgage was created by the tenant for life and the remainderman, but in both those cases the possession was taken by the mortgagee under his mortgage title. In the case before his Lordship, however, the possession was taken by the mortgagee, not in that character but in his character of purchaser of the life estate in the equity of redemption, having obtained, contemporaneously with his purchase, an assignment of the mortgage for his protection as purchaser, and his Lordship, whilst recognizing the distinction, thought it immaterial since the statute.

on which in

In Kirkwood v. Lloyd the question arose, what is Title affected the effect of payment of interest on a judgment after the by judgment lapse of twenty years, not as between the person paying and the person paid, but as between third parties and

(z) On this point see the case, (a) 1 Keen, 601. and ante, pp. 526, 527.

terest paid

after twenty years.

Mortgage
more than
twenty years
old, not barred
by time, per

se.

Contract may

be to take title, although not clearly within

the statute.

The title must be supported by evidence,

-which may

the person paid? And the Lord C. Brady said, that is a question of difficulty. If the case turned on the effect of a payment before the expiration of twenty years, then Mahon v. Davoren (y) and Warrens v. O'Shea (z), and other cases, would show that such a payment would keep alive the judgment as against all persons; or at least its effect would be too doubtful to allow the court to force the title on a purchaser; but there is no decision to show what is the operation of such a payment after twenty years.

A mortgage dated more than twenty years ago is not, per se, evidence, as against a purchaser, to show that it is paid off or barred by the Statute of Limitations. There ought to be at least some evidence to show that no interest, or no part of the principal, has been paid (a), or no such acknowledgment in writing as the sect. 40 of the 3 & 4 Will. 4, c. 27, specifies has been given within the last twenty years.

By contract, however, either in express terms, or as the necessary consequence of the provisions of it, a purchaser may be, of course, bound to accept a title depending on, although not clearly within the Statutes of Limitations (b).

In deciding whether a purchaser is compellable to take a title, the court has to consider whether there be sufficient evidence of title to satisfy the court. Long possession without any deed is more regarded than ancient deeds without possession (c); and when it has been long and uninterrupted and in opposition to them, the importance they would have, if followed by possession, is lost (d).

A purchaser will be compelled to take a title resting be by affidavit on possession under the Statute of Limitations where

only.

(y) 2 H. & B. 523.

(z) 5 Law Rep., N. S. 77.

(a) Spunner v. Walsh, 10 Ir. Eq. R. 386.

(b) See Hyde v. Dallaway, 4 Beav. 606, ante, p. 732.

(c) 2 Inst. 118; 1 Eden, 296. (d) Turn. & R. 218.

the evidence of such possession is by affidavit only (e). A purchaser under a decree of the court is not bound to rely upon mere affidavits. In a court of law they are mere waste paper. But a court of equity is frequently obliged to act upon facts making out a title which have been proved by affidavit, which constitute a title only there. But if the purchaser chooses to have a more solemn mode of establishing these facts he can require it. The purchaser is not bound to accept the affidavits in proof of these facts. He may insist upon having a regular examination of witnesses in the usual manner in which any other question of fact is proved in the master's office. The mode of proof, therefore, rests entirely on the purchaser's consent. Courts of equity, however, frequently compel an acceptance of a title resting on affidavits; for instance, in questions of identity (ƒ), of receipt of rent (g), and of seisin (h); and must, of course, in such cases, act with great caution, and ought to be satisfied, before compelling a party to take such a title, that the facts as proved are such as to sustain the title, in the event of any adverse claim being set up (i).

SECTION II.

The Time for which Titles are to be shown as regards the Statutes of Limitation.

the rule with reference to

A peaceable possession of sixty years has been said Sixty years to make a right; for 32 Hen. 8, c. 2, took away the writ of right and the formedon, and the 21 Jac. 1, c. 16, the old Statook away the entry and assise (k); and many persons tation,

(e) Scott v. Nixon, 3 Dru. & War. 388, 2 Con. & L. 185, S. C. (f) See Flower v. Hartopp, 6 Beav. 476; Cottrell v. Watkins, 1 Ib. 361.

(g) Moulton v. Edmonds, supra.

(h) Scott v. Nixon, supra.
(i) Scott v. Nixon, supra. See
also Moulton v. Edmonds, supra.

(k) Jenk. Cent. Ca. 49, p. 26;
Widdowson v. The Earl of Har-
rington, 1 Jac. & W. 532.

tutes of Limi

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-founded on

the time for

of right.

have considered sixty years' possession as the best title which can be made (1). This, however, must mean adverse possession, and even such a possession would not be, in all cases, sufficient (m).

The former of these two statutes, however, did not bar any right, but only prohibited the bringing of a writ of right, and the 3rd section extended to only actions and not to entries of a person's own possession; and, therefore, although a person had been out of possession of land for sixty years, yet if his entry was not tolled he might enter and bring any action of his own possession (n).

The opinion that such a possession was the best of bringing writs titles was probably founded on the old Statutes of Limitation. By the 32 Hen. 8, c. 2, a writ of right must have been founded on the actual (o) seisin of an ancestor of the demandant within sixty years (p), and a possessory action on the like seisin within fifty years (q), computed, in each case, from the teste of the writ, or, in either case, on the seisin of the demandant himself Those writs, as within thirty years so computed (r). And in a writ of to amendment, intrusion the seisin of a tenant for life was not the regarded differently by differ- seisin of an ancestor of the remainderman (s). A writ ent judges. of right also was commonly regarded as a very vexatious proceeding (t), as generally seeking to disturb a possession which had continued for a considerable time (u), and therefore not to be lightly disturbed (r), because of the consequence of overturning titles which have been supposed to exist for near sixty years (y). Hence

(1) 3 Bl. Com. 196; per Sir J.
Mansfield, C. J., Charlwood v.
Morgan, 1 New R. 66.

(m) 1 Pres. Ab. 250, 251, 267.
(n) Bevil's case, 4 Co. 8.
(0) Ib.

(p) Sect. 1.

(g) Sect. 2.

(r) Sect. 3.

Widdowson v. The Earl of

Harrington, 1 Jac. & W. 532.
(t) Per Heath, J., Adams v.
Radway, 1 Marsh. 602.
(u) Ib.

(c) Per Park, J., Worley v. Blunt, 9 Bing. 635, 640; Widdowson v. The Earl of Harrington, 1 Jac. & W. 532, 556.

(y) Per Sir J. Mansfield, C. J., Charlwood v. Morgan, supra.

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