APPIAH v. BASIL

JUDGMENT OF LORD MORRIS

Lord Morris delivered the judgment of their Lordships: [He referred to the facts and continued:] Anthony died in December, 1952. Down to that date no claim appears to have been made but some years later, i.e. on the 2nd February, 1956, the personal representatives of Anthony (who are the present appellants) commenced an action against the respondent. They claimed that the provision in the indenture of the 11th November, 1927, under which Basil was to retain half of the mortgaged property amounted to a clog on Anthony's right of redemption. They contended that the surrender by Anthony in 1931 of the lease of the original plot 435 and its division into two moieties was a step in the fulfilment of the provisions of the 1927 indenture. The statement of claim contained the following paragraphs:

"5. In pursuance of the said mortgage agreement, the Mortgagor surrendered unto the Government of Ashanti Plot No. 435 Old Town Section `B' and the Government of Ashanti divided the plot 435 Old Town Section `B' into two separate Plots thenceforth known as Plots Nos. 435 and 435A and the Mortgagee took possession of both and erected buildings thereon.

"6. In 1949 the present defendant as successor and beneficiary to Noah Basil Basil assigned Plot No. 435 to Yaw Anthony, the sum of £3,500 having been paid to the Mortgagee but retained Plot No.435A which is the other half of the original Plot No. 435 which was divided into two in pursuance of the Mortgage Agreement of 1927.

"7. The plaintiffs say that the provision in the mortgage agreement of 1927 `that if the mortgagor shall pay the mortgagee the sum of £3,500, the Mortgagee will at any time thereafter upon the request and at the cost of the Mortgagor reconvey half of the said messuages hereditaments and premises with the building thereon as set forth in the agreement aforesaid unto the mortgagor his heirs executors administrators or assigns or as he or they shall direct'. . . if and in so far as it prevents the plaintiffs from redeeming the whole mortgage property upon proper payment of the principal is illegal and void as a clog on the plaintiffs' right to redeem and is not capable of being enforced against plaintiffs."

The claim of the plaintiffs was for a declaration as follows:

"8. Wherefore plaintiffs claim declaration that notwithstanding the provision in a deed of mortgage dated 11th November, 1927 between Yaw Anthony (deceased) and Noah Basil Basil (deceased) that on the said Y