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![handle is hein.slavery/ssactsengr0103 and id is 1 raw text is: SIMPSON V. FORRESTER [182.9]
Equity will act on the same presumption. If nothing has been done under a judg-
ment for twenty years, a Court of Common Law will presume that it is satisfied. If
the decree of 1791 had been in a suit. instituted by the annuitant, and had ascer-
tained what was due for the annuity, we might have had to consider whether, as
nothing had been done on that decree from 1791 to 1822, we ought not to presume
that the debt so ascertained was satisfied. But the [229] decree of 1791 directs the
payment of no debt, nor does it ascertain the existence of any, but merely directs an
inquiry whether there be any debt or not, and the inquiry so directed was never
entered upon. Such a decree cannot prolong the time allowed for the recovery
of the debt.
This claim has. never been in any manner acknowledged since the year 1775 until
the present moment. The annuity ceased in 1794, when the widow died, and her
claim for it was never made until twenty-eight years afterwards.
But it has been said that, as the mortgagee has within twenty years acknow-
ledged the existence of the mortgage, the mortgagor has on account of such acknow-
ledgment a right to sue for the redemption of the estate; and that this annuitant,
whose claim is against the equity of redemption, has a right, as the mortgagor does
not object to it, to claim through. his side against the mortgagee. If so, every
legatee of the mortgagor must have the same right of insisting, that the mortgage
debt is satisfied, and of calling on the mortgagee to give him an account of the pro-
ceeds of the estate from the time, of the death of the mortgagor, a period of above
fifty years. If creditors or legatees of the mortgagor had the right of calling mort-
gagees to separate accounts, every mortgagee would be liable to be ruined by the
different suits that might be instituted against him; but from. the principle laid
down in the case of Troughton v. Binkes (6th Vesey, 572), and the cases referred to
by the Master of the Rolls in his judgment in that case, I think that the mortgagor or
his heirs only [230] can sue the mortgagee for an account and redemption, unless
it can be, shown that they and the mortgagee are in collusion to prevent creditors
or legatees from recovering what is due to them from the mortgagor's property.
There is no charge of such collusion in this bill, nor is there any pretence for sup-
posing any such collusion in the present case.
We are therefore of opinion that the decree in the Court below cannot be sus-
tained; and we shall advise His Majesty to, allow the appeal to reverse that decree,
without costs, to order the Court below to direct that any costs that may have been
paid under the decree shall be returned, and to dismiss the bill filed in the Court
below, with costs.
[Mews' Dig. tit. ANNUITY; I. CONSTRUCTION AND NATURE; 4. On utat Property
chargeable: Pri'imary-Fund-Devise subject to Annuity: also tit. HUSBAND
AND WIFE; 1. Of u/tat Lands; VI. DOWER AND FREEDENCH; 3. Arrears: also
tit. MORTGAGE; F. MANAGEMENT AND ACCOUNT; 3. Account; b. When ordered;
L. REDEMPTION; 1. Right to; a. General Principles; f. Judgment Creditors:
also tit. PRACTICE; XIII. JUDGMENT AND ORDERS; g. ]nfJOr'Cing Perfor'nance:
also tit. WILL; IX. CONSTRUcTroN; g. Particular Words.]
[231] ON APPEAL FROM DEMERARA.
SIMPSON, Representative of Stalker, Welch and Milburn, and also of Stephenson,
Saltmarsh and Kynaston, Assignees of the estate and effects of the said
Stalker, Welsh and Milburn,-Appellant; FORRESTER and BACH, pro-
visional Administrators of the estate, and effects of Joseph Cook, deceased,-
Respondents [Dec. 3d, 1829].
Devise of property, real and personal, . after the death of the testator's wife, to
be sold, and the money arising therefrom to be immediately deposited in
the Bank of England, the interest of which was to be paid to the testator's
daughter during her life, and the principal wholly at her disposal a.t her
I KNAPP, 229](ViewImageLocal?handle=hein.slavery/ssactsengr0103&div=1&collection=&method=preview&ext=.png&size=3)