10 Ga. 297 | Ga. | 1851
By the Court.
delivering the opinion.
The term of limitation is the same, whether the mortgage be upon real or personal estate. As, for many years in England, real estate wTas held of vastly greater value than personalty, and as securities by mortgage upon personal property were relatively rare, we find but little note in the books of that country of distinctions between mortgages upon real estate and mortgages upon personal property. The rule that twenty years’ possession under a mortgage raises a presumption of a release, or extinguishment of the equity of redemption, is derived from the statutory bar to a writ of entry, by analogy. Why then, it is asked, will not the analogy drawn from the Statute, make the possession of personal property under a mortgage for the term which will bar an action of trover, also a bar in Equity ? In applying equitable bars, the Courts will consult the analogy of the Statute, but are not bound by it. The right to redeem after condition broken, is purely an equitable right — it is solely of equitable cognizance. Legal rules have nothing to do with it. Against it, if he is to prevail, the mortgagee must set up an equitable defence. He must, if he relies upon time, show a possession of such duration as will, according to all the equities which spring out of the relation which he bears to the mortgagor, constrain a Chancellor to presume that he has a title to the property. A possession under a mortgage, is a very different thing from possession beginning- adversely. Hence, the reasons which make
In the latter case, the possession may begin adversely to a better title — it is presumed to begin in defiance of all other titles— and if it continues for the term which the Statute has prescribed, it becomes a title, not so much by a presumption that an adversary claimant has been satisfied, as because the law, upon grounds of policy, has so ordained it. The policy of the rule in Equity, as applicable to mortgagors, is infinitely less urgent than that which requires a limitation to suits at Law to recover property. It is the same, to wit: the quieting of possession, and the prevention of litigation, but it is greatly reduced in intensity. Such being a just view of this subject, why should possession of personal property under a mortgage, for a term less than that which gives title in case of realty, constitute a bar ? I see no reason in Equity why it should, especially here, where personal property is of equal, if not greater value than real estate; and it is upon these views of the equitable character of the mortgagor’s right, and because we are not bound at all by the Statute, that we adopt the English term of twenty years, rather than our own statutory term of seven years. We hold it equitable and consistent with sound policy, that in no case should possession under a mortgage, short of twenty years, bar the equity of redemption. When the mortgagee disavows the mortgage, then we shall see that a different rule as to the term applies. In relation to the general position that the equity of redemption is barred after twenty years’ possession in the mortgagee, see the following authorities: Aggas vs. Pickerell, 3 Atkyn's R. 225. 2 Peer Williams, 287. Mr. Cox’s Note. 3 Atk. R. 313. Smith vs. Clay, 3 Brow. 639, note. Hodle vs. Healy, 1 Ves. & Beame, 536. Demarest vs. Wynkoop, 3 Johns. Ch. R. 129. Kane vs. Bloodgood, 7 Ibid, 90. 1 Paige, 48. Lamar vs. Jones, 3 Har.
Among those things which will remove the presumption of a release of the equity of redemption, and prevent the running of time against the mortgagor, are the following: an accounting and settlement between the parties. 2 Vern. 377. 5 Bro. Par. Cas. 187. Any act of the mortgagee, by which he acknowledges the transaction to be still a mortgage, within twenty years, as
Time does not bar the mortgagor, if the mortgage is in the nature of-a Welch mortgage ; that is, where no time is stipulated for payment, but a conveyance is made to the mortgagee to hold possession until the porception of the rents and profits shall discharge the debt. In such a case the morgagee takes the estate, subject to a perpetual account. In this case there was a parol agreement, subsequent to the execution of the mortgage, that the mortgagee should hold possession until the hire of the negroes should pay the debt. The mortgage itself, however, contained no such stipulation. The parol agreement does not, therefore, characterize the mortgage. Ora vs. Henning, 1 Vern. 418. 1 Merivale R. 114.
So, if the mortgagor continues in possession, the limitation does not apply, and it is said that even the possession of a part of the mortgaged property will keep the mortgage open. 2 Cruise, 161. 1 Johns. Ch. R. 594. Rakestraw vs. Brewer, Sel. Cas. in Ch. 55. When any species of fraud has been practised by the mortgagee at the time when the mortgage was made, the mortgagor may redeem. I have no doubt but that in this, as in other cases, time will run against him from the discovery of the fraud. 2 Cruise, 161. 1 John. Ch. Rep. 595. Ibid, 402.
A very interesting question touching this subject, is mooted in the books, to wit: whether verbal admissions or parol acknowledgments are sufficient to establish the fact, that the mortgagee has treated the conveyance as a mortgage w'ithin twenty years. Chancellor Kent, in Marks vs. Pell, does not decide it, but obviously inclines against their sufficiency. In Dexter vs. Arnold, Judge Story reviews the authorities, and expresses himself strongly against their sufficiency; but he does not decide the question. In Barron vs. Martin, Sir William, Grant thought the parol evidence admissible; and Ch. Kent, in his Commentaries, concedes that the presumptions against the mortgagor may be rebutted by parol proof. Ail of these able Chancellors, however, concur in saying, that the proof must be -clear and unequivocal.
The questions which I have thus presented, grow out of the assignments in this case. We do not consider that in the opin
The rule obtains in all analogous cases. Thus the possession
So, also, the possession of a tenant is the possession of his landlord, and the Statute does not run in his favor until he disavows the relation and sets up an adverse possession. This is a relation very analogous to that of mortgagor and mortgagee in possession. It is too obvious to require exposition. In the case of Whaley vs. Whaley, the Court of Appeals of South Carolina held, Ci That a tenant entering upon land by the bare permission of the landlord, and paying no rent, in order to claim by adverse possession, must disclaim the tenancy, and give notice of the fact to the landlord 1 Speer. R. 230 to 236. It is worthy of note, that this case puts a construction upon the words in the books, as applicable to this subject matter, to wit: “ bring home knowledge.” The Court of Appeals in South Carolina obviously use them as synonymous with express notice. The doctrine of this case in a similar case was recognized by this Court in Spaulding vs. Grigg, 4 Ga. Rep. 75. See also 1 Nott & McCord, 370. 3 Peters, 43. We reverse the decision of the Court below on this point, not doubting but that our judgment is sustained upon principle and by the authorities.
Let the judgment be reversed.
The Reporter has ^ copied only so much of the Judge’s opinion as relates to the point upon •which we differ with him. In the record, however, his opinion comes up upon all the questions discussed and were excepted to.