JUDGMENT OF SOWAH J.
This is an appeal from the Amansie Local Magistrate's Court dismissing the claim of the plaintiff for recovery of his farms on the ground that, "after carefully considering the evidence before it, the court is of the opinion that the plaintiff's action has no legal foundation, since he [the mortgagor] was the cause of the breach of the terms in the mortgage."
The history of this case is a short matter. The plaintiff's predecessor in title and uncle pledged or mortgaged his cocoa farm to the first defendant. In this context the question whether the transaction is one of pledge under customary law or a mortgage within the meaning of English law is extremely important. The first defendant was to go into possession for seven years and to work the farm order to repay himself from the proceeds; thereafter he was to return the farm to the plaintiff. If during the period of seven years the plaintiff or his predecessor paid the sum of £G300 which was the loan, the farm would be returned to him and any proceeds obtained from the land would be regarded as interest. The terms of the agreement were embodied in a deed. It appears that in about 1956 the first defendant in alleged pursuance of the terms of the agreement sold the farm saying that the plaintiff had committed a breach of the term to give him exclusive possession of the land and further had partitioned the farm, the subject of the transaction. The magistrate so found that the plaintiff and his predecessor committed such breaches.
The issue in this appeal is one of law only. Before discussing the law on the matter I will set down in extenso portions of the deed which read:
“WHEREAS the mortgagor is seised in fee simple absolute in possession free from all incumbrances and family claims of one (1) cocoa farm situate and lying at a place called Kwaemu in Mpreniase aforesaid hereinafter mentioned and intended to be hereby granted And Whereas the mortgagee hath at the request of the mortgagor and the sureties agreed to lend to the mortgagor the sum of three hundred pounds (£G300) with interest on having repayment thereof secured to him by way of the mortgagee entering into the said cocoa farm intended to be hereby [p.52] secured or granted and taking possession thereof with a view to plucking the crops and enjoying the profits thereof for seven years (7) in satisfaction of the said sum of three hundred pounds (£G300) so lent and interest thereon commencing from the date of these presen
