Victorian Consolidated Legislation

Limitation of Actions Act 1958 - SECT 26

Effect of acknowledgment or part payment on persons other than the maker or recipient

26. Effect of acknowledgment or part payment on persons other than the maker
or recipient



(1) An acknowledgment of the title to any land or mortgaged personalty by any
person in possession thereof shall bind all other persons in possession during
the ensuing period of limitation.

(2) A payment in respect of a mortgage debt by the mortgagor or any person in
possession of the mortgaged property shall, so far as any right of the
mortgagee to foreclose or otherwise to recover the property is concerned, bind
all other persons in possession of the mortgaged property during the ensuing
period of limitation.

(3) Where two or more mortgagees are by virtue of the mortgage in possession
of the mortgaged land, an acknowledgment of the mortgagor's title or of his
equity of redemption or right to discharge of the mortgage by one of the
mortgagees shall only bind him and his successors and shall not bind any other
mortgagee or his successors; and where the mortgagee by whom the
acknowledgment is given is entitled to a part of the mortgaged land and not to
any ascertained part of the mortgage debt, the mortgagor shall be entitled to
redeem or to compel discharge of the mortgage of that part of the land on
payment, with interest, of the part of the mortgage debt which bears the same
proportion to the whole of the debt as the value of the part of the land bears
to the whole of the mortgaged land.

(4) Where there are two or more mortgagors and the title or right to
redemption or to discharge of the mortgage of one of the mortgagors is
acknowledged as aforesaid the acknowledgment shall be deemed to have been made
to all mortgagors.

(5) An acknowledgment of any debt or other liquidated pecuniary claim shall
bind the acknowledgor and his successors but not any other person:

Provided that an acknowledgment made after the expiration of the period of
limitation prescribed for the bringing of an action to recover the debt or
other claim shall not bind any successor on whom the liability devolves on the
determination of a preceding estate or interest in property under a settlement
taking effect before the date of the acknowledgment.

(6) A payment made in respect of any debt or other liquidated pecuniary claim
shall bind all persons liable in respect thereof:

Provided that a payment made after the expiration of the period of limitation
prescribed for the bringing of an action to recover the debt or other claim
shall not bind any person other than the person making the payment and his
successors, and shall not bind any successor on whom the liability devolved on
the determination of a preceding estate or interest in property under a
settlement taking effect before the date of the payment.

(7) An acknowledgment by one of several personal representatives of any claim
to the personal estate of a deceased person or to any share or interest
therein, or a payment by one of several personal representatives in respect of
any such claim shall bind the estate of the deceased person.

(8) In this section the expression successor in relation to any mortgagee or
person liable in respect of any debt or claim means his personal
representatives and any other person on whom the rights under the mortgage or,
as the case may be, the liability in respect of the debt or claim devolve,
whether on death or bankruptcy or the disposition of property or the
determination of a limited estate or interest in settled property or
otherwise.

Division 4-Fraud and mistake