The freeholder charged the land in 1856. He remained in possession, and did not make any payments or give any acknowledgment of the mortgagee’s title. In 1870 the mortgagee presented a bill for foreclosure, and in 1874 a bill of redemption or foreclosure was granted, with foreclosure being made absolute in 1877, and possession sought in 1878.
Held: The action was not barred under the 1833 Act though brought more than 20 years after any acknowledgment. It is in the nature of the mortgage transaction that the mortgagor remains in possession, and is entitled to receive the rents from it. His possession is as of right and is not a wrong. A mortgagee taking possession is not entitled to recover rents paid to the mortgagor before he has taken possession. A mortgagor in possession of the mortgaged land is to be treated as being in possession with the consent of the mortgagee, unless the mortgagee has terminated the consent and there is then evidence to show that the mortgagor was a trespasser on the mortgaged land.
Lord Selbourne LC
(1881) 6 QBD 345,  50 LJQB 473,  44 LT 327,  29 WR 904
England and Wales
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 April 2022; Ref: scu.264290