Co. Litt. 252 a.: Mrs. Damer's right could not be barred if the equity of redemption was in her, since her title did not accrue until after the death of George Earl of Orford. If there was an equitable disseisin, no estate passed by the will of Horace Earl of Orford. Then it descended to Lord Cholmondeley as heir at law. If it was in Mrs. Damer, the title accrued by the death of Horace Earl of Orford in 1797, and the twenty years had not elapsed. It is not a universal rule that twenty years is the term of limitation in equity. Collins v. Goodall, 2 Vern. 235. A rent commencing by grant is not barred by forty years. Stackhouse v. Barnston, 10 Ves. 458. The statute of limitations does not apply to a legal, much less to an equitable rent-charge. It is a principle of equity that no act of a trustee can prejudice or narrow the interest of the cestuique trust. The mortgagee was a trustee for the party entitled; and if an estate had been gained by wrong, it was the act or permission of the trustee. Fonb. Tr. Eq. 2. 166.

The Lord Chancellor said, that a mortgagee was only in a certain qualified sense a trustee, since a mortgagee in possession, keeping no account and receiving the rents for twenty years without account, would become the owner of the estate. The mortgagor would be barred by the lapse of time; that it had been held in a cause at the Cockpit, where Lord Kenyon assisted, that such a case stated in a pleading would leave it open to demurrer.*

The Attorney-General continued, The mortgagee cannot, by collusion with a stranger, defeat * See Cuthbert v. Creasy, in a note at the end of the Report of this case.

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the equitable right; that some person had the right to redeem was admitted; that the mortgagee had gained an absolute estate by acquiescence was not contended ; under the deed of 1781 there never had been a possession adverse to the title, nor could be, as it was settled in a similar case, that abatement by a younger son does not operate against the elder, because they claim under the same title; Litt. Ten.; that the limitation in the deed of 1781 had not been disturbed; and if Lord Clinton applied to redeem, he could only state a wrongful possession under the mortgagee, who is a trustee for the right owner; that in the deed assigning the mortgage to Drake in 1811, the equity of redemption is reserved to the same persons who were entitled under the deed of 1785, and according to the limitations of the deed of 1781; that is the heirs of George Earl of Orford.

Here The Lord Chancellor observed, that Lord Clinton was not a party to the deed of assignment.

The Attorney-General answered, that Drake was a trustee for Lord Clinton, as appeared by the answer of Lord Clinton; and, therefore, it was the admission of his agent that the limitations of the deed of 1781 remained untouched. He then submitted the four following positions: 1. That there was no equitable disseisin, if the estate of the mortgagee was untouched; that the right to redeem was in the party shewing a right under the original mortgagor; that no act of the mortgagee, by receipt of rents or otherwise, could alter that right; and, therefore, the lapse of twenty years did not affect the right. 2. If there could have been an equitable disseisin, as the right passed under the will to Mrs. Damer by the death of Horace Earl of

Orford, the twenty years had not elapsed. 3. That if there was an equitable disseisin by analogy to legal disseisin, the right did not pass, but descended to Lord Cholmondeley as heir-at-law. 4. That if at the death of George Earl of Orford there was a doubt whether the estate passed under the will or descended to Lord Cholmondeley as heir, it was competent to the heir and devisee to agree to divide the estate, and that it was not material to prove the fact, because it is immaterial to the Defendant; that it is not a case of champerty, because there was a right or claim to the estates in one or other of the Plaintiffs.

The Lord Chancellor said, the allegation of the bill was, that doubts and difficulties had arisen which were compromised by the agreement, and that the truth of this fact could not appear but by the production of the agreement.

The Attorney-General answered, that it had been held by the Vice-Chancellor* in Ryan v. Anderson, 3 Mad. 174. that such agreement was legal, and that the allegation need not be proved, as it was immaterial to the Defendant, whose interest was not affected by it; that the same doctrine appears in Stapilton v. Stapilton, 1 Atk. 2. cited 1 V. & B. 28.

Mr. Shadwell for the Appellants — contended that such an agreement could not amount to champerty or maintenance, according to the definitions of those offences. Co. Litt. 368., Blac. Com. 4. 134.; for the supposed offenders were here parties to the record. Nor is it within the statute 32 Hen. 8. c. 9. If the possession of the mortgagee is the possession of the party entitled to the equity of re

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demption, it cannot be a pretensed title, for the statute excepts the case of possession.

The agreement is by parol, although minutes have been taken of what the agreement is to be.

The Lord Chancellor. It may be said, when you come to redeem, that you must shew your title as you state it. If by the proviso in a mortgage I agree to account with A. B., I cannot be compelled by C. D. to account. If, under the proviso for redemption you can shew that the two Plaintiffs are entitled to have the account, that will do. If Mrs. Damer were the sole Plaintiff, she might require the account, and it would be immaterial what agreement was made out of Court. If a mortgagor files a bill for redemption, it may be material who is to pay him the surplus.

Mr. Shadwell. The account is not the substance of the Plaintiff's case, and he may waive any part of the prayer of his bill. of his bill. As to the effect of the deed of confirmation, it is limited, not general nor absolute, and ought not to be extended beyond the intention, and will be rectified if there is a mistake. Lansdowne v. Lansdowne, Moseley, 364.

The Lord Chancellor. Many cases in Moseley are extremely well reported, others not so.

Mr. Shadwell then proceeded to argue that courts of equity interfere after the lapse of twenty years, and cited Bonney v. Ridgard, 1 Cox. 145. cited in Andrews v. Wriley, 4 Bro. C. C. 124. ; Medlicottv.O'Donnell, 1 Ba. & Be. 156.; and Moore v. Blake, 1 Ba. & Be. 62. reversed on appeal, 4 Dow. 280. As to mortgagees in possession, he said the doctrine had been fluctuating, and cited Pearson v. Pulley, 1 Ch. Ca. 102., and 3 P. W.

287. note B; Meller v. Lees, 2 Atk. 494.; Aggas v. Pickerell, 3 Atk. 225.; Acherley v. Roe, 5 Ves. 565.; Harmood v. Oglander, 6 Ves. jun. 199. ; and the appeal against the judgment, 8 Ves. 106., in which the Lord Chancellor says that relief is not to be denied on account of lapse of time. Collins v. Goodall, 2 Vern. 235., decided on the authority of Foster's case, 8 Co. 128.; Hansard v. Hardy, 18 Ves. 455.; Hardy v. Reeves, 4 Ves. 466., to prove that adverse beneficial ownership for twenty years is not in equity a sufficient bar, but that after that time the courts will interfere against persons not having the legal estate. He then argued, that if there were such a thing as equitable disseisin, Horace Lord Orford could not devise an estate of which he was not seised; and the heir at law might have brought his writ.

Lord Redesdale. But Lord Cholmondeley must claim as heir of George and Horace Lord Orford. Then comes the question whether he can quarrel with the deed of Horace Earl of Orford.

Mr. Shadwell. The descent would have enabled the party to bring a writ of right. Seisin is not necessary. Co. Litt. 281 a. Fitz. N. B. 11. Lord Cholmondeley, if he claims at law, might sue as the heir of George Earl of Orford; the question is, whether a possession originally tortious can be made good by length of time, unless it is clothed with the legal estate. Bowles v. Stewart, 1 Sch. & Lef. 209.

The mortgagee is not simply a trustee, but by accounting remains a trustee for the party entitled while he is out of possession; receiving interest and willing to be redeemed, he holds for the party entitled. A court of equity might refuse