Turner, Officiating C.J. and Oldfield, J.
1. The question which arises in this appeal is whether or not there has been a sufficient acknowledgment of the mortgagor's title or his right to redeem to prevent the operation of the law of limitation, or rather to give the representatives of the mortgagors a new period from which limitation should ho computed.
2. The terms of the law, an acknowledgment of the mortgagor's title or an acknowledgment of his right to redeem, were not, it may be presumed, intended to be mere tautology. An acknowledgment that a certain person, or his representative, is the proprietor of the estate is an acknowledgment of his title. An acknowledgment that the mortgage is a subsisting mortgage would be an acknowledgment of his right to redeem, if he established his title.
3. The provisions of the English Statute 3 & 4 Will. 4, c. 27, Section 28, require, in order to enlarge the statutory period of limitation, that an acknowledgment of the title of the mortgagor or of his right to redemption shall be given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, in writing signed by the mortgagee or the person claiming. It appears to be the law that any acknowledgment, which before the passing of the English Statute would have been sufficient, will satisfy the requirements of the Statute if it be given in writing to the mortgagor or to a person claiming his estate, or to the agent of such mortgagor or person.--Fisher on Mortgages, 2nd ed., vol. i, 502, page 288. Before the Statute was enacted it was held that an acknowledgment of the mortgage as a subsisting mortgage was an acknowledgment of the mortgagor's right to redeem; and in a case quoted by Lord Hardwicke it was held by Sir J. Jekyll that, where a testator described an estate in his will as my 'mortgaged estate,' it was a sufficient acknowledgment of the mortgagor's right to redeem (3 Atkyn's Rep., at p. 114). This ruling appears never to have been overruled; it is quoted in Tudor's Leading Cases, vol. ii, 4th ed., 1065. We are not, indeed, bound by English cases, but we may usefully consult them.
4. With the exception that it requires the acknowlegment to be in writing, the law of limitation in this country, so far as it applies to the question before us, appears to be analogous to the English law as it was established by the practice of the Courts of Equity before the Statute above referred to was enacted. The law of British India does not require that the acknowledgment should be given to the mortgagor, but, in other respects, it follows the language of the English Statute and the practice of the Courts of Equity before that Statute was enacted. The acknowledgment must be in writing, signed by the mortgagee or a person claming under him, and it must acknowledge the title of the mortgagor or his right to redeem. In the case before us the settlement officer had prepared the record-of-rights, a record which by law he was bound to prepare, showing the interests in the village of which be found persons in possession. From the records of preceding settlements lie ascertained that the appellants, or rather their predecessors in title, had obtained possession in virtue of a mortgage, and he entered them accordingly in his record as mortgagees. To this record, for the purpose of certifying to its correctness, he obtained the signature of those whom he found in possession, and, amongst others, of the appellants. This appears to be a stronger case than that decided by Sir J. Jekyll. Here there is not a mere description of the estate as a mortgaged estate, but a subscription to a record purporting to show the extent of the rights which the persons in possession enjoyed. For this reason we hold the acknowledgment sufficient, and would dismiss the appeal with costs.
5. There can be no doubt that the settlement record of 1841 does not contain an express acknowledgment of the title of any particular persons as owners of the estate in question in this suit or of their right of redemption, for the mortgagors or their representatives are not named. If, therefore, such an express acknowledgment be required by the terms of Article 148, Schedule ii, Act IX of 1871, the present suit, instituted in 1874 for the redemption of a mortgage alleged to have been made in 1811, is liable to be dismissed as barred by the law of limitation. I still adhere to the opinion intimated in my judgment of the 8th April last, that such an express acknowledgment is not required, and the acknowledgment of a subsisting mortgage tenure is by implication an acknowledgment of the title of an owner and of his right to redeem, and sufficiently for all practical purposes complies with the terms of the law. It is not reasonable to suppose that any one would allow himself to be described as the mortgagee of a property of which the mortgage had ceased to be redeemable at law, and the names of the owners thereof had been lost to knowledge by lapse of time, without any mention of those circumstances. In the present case there are no grounds for supposing that in 1841 there was any doubt or dispute as to who were the owners, or whether they were entitled to redeem the property in suit. The addition of their names, though it would have completed the statement of the facts, was hardly necessary, and the omission of their names was presumably accidental. An acknowledgment of a mortgage tenure, not including the title of a mortgagor and of a right to redeem, appears to be meaningless, useless, and absurd. The main point is whether the tenure is that of a mortgagee; it can make no difference to the mortgagee whether the owner is A or B. If it be held that an entry describing C as mortgagee of a share, acknowledged by C, would be an acknowledgment that would satisfy the requirements of the law, it cannot plausibly be contended that an entry describing C as mortgagee does not describe a subsisting mortgage tenure. But if there were any real doubt as to whether the acknowledgment implied in a man's description of himself as a mortgagee referred to a subsisting mortgage, or one which had ceased to be redeemable, the doubt might easily be removed by an enquiry as to whether the mortgage had or had not ceased to be redeemable at law at the date of the acknowledgment.
6. The view which I have taken as to what constitutes a sufficient acknowledgment is apparently not at variance with English law. In page 288, vol. i., Fisher's Law of Mortgage, it is stated that 'any expression referring to the estate as mortgaged will be a sufficient acknowledgment.' The description by a man of himself as the mortgagee of an estate is surely a reference to the estate as mortgaged to him. In the case of Stansfield v. Hobson 3 De G. Mac. & G. 620 : S.C. 16 Beav. 236 : 22 L.J. Chanc. 657, cited in support of the doctrine, the reference to the estate, as one of which the mortgage was redeemable, did not express the name of the party entitled to redeem, which was ascertained by external evidence. This case establishes both the points for which I contend; first, that an acknowledgment of a mortgage tenure is by implication an acknowledgment of the title of an owner; and secondly, that other evidence may be admitted to show who is the person possessing that title to whom the acknowledgment referred. In that case the evidence indicating the owner may have been nearer at hand than in the present case; but that difference does not affect the principle that an acknowledgment of a redeemable mortgage may be connected by evidence with the person entitled to redeem it. On the other hand, it is observable that the acknowledgment in that case not only did not specify any particular person as the owner, but that it did not specify any particular property as the subject of the mortgage; and further, that it was apparently made after the lapse of the period of limitation, when the right of redemption, if it had not been extinguished, could not be enforced at law. The acknowledgment, indeed, which was deemed sufficient to take the case out of the ordinary operation of the law of limitation was no more than an answer by the mortgagee to a proposal on behalf of the mortgagor for a meeting for the purpose of considering the matter of the debt, to the effect that, unless some one was prepared to pay the debt, a meeting would be useless. It was held that, by that answer, a right of redemption had been admitted; and the admission was supplemented by evidence which pointed out the mortgagor and the mortgaged property. In the present case the acknowledgment takes the form of a description by the defendants' ancestors of themselves as mortgages of the property in question on the public and solemn occasion of a settlement, the mortgage not being known to have been irredeemable at law at the time, and a clue to the names of the owners being found in the settlement records.
7. At page 314 of Atkyn's Reports mention is made of a case in which Sir J. Jekyll decreed a redemption upon the circumstance of the person who was in possession of an estate originally in mortgage calling it by the name of the mortgaged estate in his will. This case supports my judgment not less than that of Stansfield v. Hobson above quoted.
8. I am under the impression that my honourable colleagues take a different view of this case than I do. I, therefore, would simply say that I adhere to my former judgment. Nothing was stated at the hearing which shows me that my opinion was wrong, and I can add nothing to what I have already put on record.