A mortgage deed contained an express covenant to repay on demand the amount advanced. The principal sum and interest were secured by a mortgage of real property. A demand for payment was made, but not satisfied. An action was brought on the covenant (not on a simple contract debt) for the sum due under the covenant. No attempt had been made to enforce the lender’s security rights against the land charged. The defendant successfully pleaded limitation. More than 12 years had passed since any payment had been made under the deed. The court rejected the contention that the period for recovery under an action at law on the personal covenant was 20 years, that being the period still allowed by the 1833 Act for actions on a specialty. Subject to questions of payment and acknowledgement of the debt, the reduced 12 year period in s8 of the 1874 Act embraced both the personal remedy on the covenant against the mortgagor and the proprietary remedy against the land, on which the debt is secured, so that, if the remedy in respect of the land itself was barred, so also was the right of action on the covenant. The specific limitation provisions relating to mortgages take precedence over the general provisions relating to specialties.
Judges:
Sir George Jessel MR and Bowen LJ
Citations:
(1882) 22 Ch D 511
Statutes:
Real Property Limitation Act 1874 8, Civil Procedure Act 1833
Cited by:
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Limitation, Land
Updated: 30 April 2022; Ref: scu.199714