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![handle is hein.slavery/ssactsengr0858 and id is 1 raw text is: BAKER V. WETTON
executed should contain a covenant by the trustees to indemnify Mr. Wilson against.
the debts of Mrs. Wilson. My opinion further is that the relief is to be given only
on the original bill; and that, inasmuch as the cross-bill is filed, not merely for the
purpose of opposing the relief which is asked by the original bill, but for the purpose,
of having the articles delivered up on account of fraud, intimidation and duress, and
inasmuch as the case of fraud is not made out, the cross-bill must be dismissed with
costs; and that, up to the hearing, the Plaintiffs are entitled to the costs of the-
original bill.
With respect to the observation that, if the covenant is to extend against the
present debts and liabilities of the husband, it will have the effect of releasing him
from those liabilities which he expressly contracted to undergo up to the 24th of'
June, my opinion is that that cannot be the fair construction of the articles: but
perhaps it would be premature to give any opinion on that point, and, therefore, it,
must be referred to the Master to settle the instrument according to the articles,
themselves.(l)
[426] BAKER V. WETTON. Feb. 13, 1845.
[S. C. 9 Jur. 98.]
Mortgagor and Mortgagee. Pleading. Redemption. Statute of Limitations.
A bill to redeem a mortgage made twenty-five years before stated that the mortgagee
entered into possession of the estate shortly after the date and execution of tha
mortgage deed, and had been in possession ever since.
Held, that the Court could not intend, from that statement, that the mortgagee
entered within the first five years after the date of the deed.
Qu. Whether, since the late Statute of Limitations (3 & 4 Will. 4, c. 27, s. 28), the
bar created by twenty years' possession by a mortgagee is defeated by his having
kept accounts of the rents received by him.
Demurrer for want of equity to a bill to redeem a mortgage made twenty-five
years before the commencement of the suit.
Mr. Bethell and Mr. Heathfield, in support of the demurrer, said that the bill
stated that the mortgagor entered into possession of the mortgaged estate, shortly after
the date and execution of the mortgage deed, and that he had been in possession
ever since; and as every intendment was to be made against the pleader, the words
shortly after must be taken to mean within the first five years after, and, that
being so, it appeared from the bill that the mortgagee had been in possession for
twenty years at the least; and, consequently, that his right to redeem was barred.
Vernon v. Vernon (2 Myl. & Cr. 145), and Kemp v. Pryor (7 Ves. 237; see judgment,
245).
Mr. Bilton supported the bill.
THE VICE-CHANCELLOR [Sir L. Shadwell]. In Vernon v. Vernon the bill contained
statements from which the time at which the removal of the slaves took place could
be inferred; but there is nothing in this bill to shew, or from which it can be
inferred, with certainty, at what time the mortgagee's possession com-[427]-menced.
Consequently, the demurrer must be overruled.(2)
(1) An appeal from the judgment is pending in the House of Lords. [1 H. L. C.
538.]
(2) The following point was raised, but not decided, in the above case, namely,
that though the bill alleged that the mortgagee had kept accounts of the rents
received by him, and had otherwise treated and considered himself as mortgagee, the
bar created by the twenty years' possession was not defeated; inasmuch as, since
the recent Statute of Limitations, nothing could have that effect except a written
acknowledgment of the mortgagor's title, signed by the mortgagee or some person
claiming through him, and given to the mortgagor or some person claiming his estate.
(See 3 & 4 Will. 4, c. 27, s. 28.)
423;
14 SIM. 426.](ViewImageLocal?handle=hein.slavery/ssactsengr0858&div=1&collection=&method=preview&ext=.png&size=3)