24 VLR 821IN RE SHARP Supreme Court of Victoria HOOD, J. 29 March 1899Limitation of action — Money due upon mortgage — Settlement — Husband and wife — Constructive payment — Cause of action — Supreme Court Act 1890 (No. 1142), s. 83.
In 1866, by an ante-nuptial settlement, certain moneys were settled upon trust to pay the income thereof to the wife of the settlor during her life, and after her death to hold the same for the issue of the marriage. The moneys so settled were, in September 1871, advanced by the trustees to the settlor upon mortgage. The mortgage contained a covenant for repayment of the money advanced, and interest, on 30th March 1872; but there was a proviso that if the interest was punctually paid to the mortgagees, the latter would not call in the principal sum until September 1882. There was no evidence that any interest was paid. The settlor and his wife lived amicably together from the date of the settlement until her death in 1892.