A bill filed by tenant for life in remainder against the representatives of a prior tenant for life for an account of timber improperly cut, was dismissed with costs on account of the delay, the bill not having been filed until nearly twenty years after the death of the first tenant for life. (Harcourt v. White, 28 Beav. 303.)

3 & 4 Will. 4, c. 27, s. 24.

Delay.

The statutory rule, 3 & 4 Will. 4, c. 27, ss. 2, 3, 4, 5, which gives to a Equitable waste. remainderman twenty years from the time when his title accrues in possession, for bringing an action or suit for the property, applies to a claim for compensation for equitable waste as well as to a claim to the land itself; and, therefore, an account of equitable waste was decreed against the estate of the tenant for life thirty-eight years after the waste was committed, the title of the plaintiff as remainderman in tail having accrued within twenty years before the filing of the bill. (Duke of Leeds v. Earl Amherst, 2 Phill. 117. See Morris v. Morris, 4 Jur., N. S. 964; 6 W. R. 427.) Where a tenant for life impeachable for waste commits legal waste by Legal waste. wrongfully cutting timber, time runs against the remainderman from the time of the cutting, and it appears that the period of limitation is six years. (Seagram v. Knight, L. R., 2 Ch. 628; Higginbotham v. Hawkins, L. R., 7 Ch. 676. See Birch Wolfe v. Birch, L. R., 9 Eq. 633.)

According to Lord St. Leonards, a bill of foreclosure is not a suit in Foreclosure suits. equity for the recovery of the money charged upon the land, although it may lead to that; but it is, in effect, a suit to obtain the equity of redemption, which is, in the view of equity, an actual estate. The right to file a bill of foreclosure, whether the mortgage be legal or equitable, falls within the 24th section of the 3 & 4 Will. 4, c. 27, and the 7 Will. 4 & 1 Vict. c. 28 (see post, sect. 28), and the time is governed by the legal right of the party to bring an action, or if he have not the legal estate, by the right which he would have had, if his estate had been a legal instead of an equitable one. (Wrixon v. Vize, 3 Dru. & War. 104; Sugd. R. P. Stat. 94, 121, 2nd ed. See, however, Dearman v. Wyche, 9 Sim. 570, and the note to sect. 40, post.) Where an equitable incumbrancer files a bill to assert his claim, he may be assisted by the fact that there is a fund in court, the rights in which have not been ascertained. (Lancaster v. Evors, 10 Beav. 154.)

The lord of a manor granted a lease of the manor for three lives, and deposited the court rolls with the lessee; upon the expiration of the lease by the death of the surviving life, the lord requested the representatives of the lessee to deliver back the court rolls, of which no notice nor any proceeding was taken until twenty-two years after, in 1844, when a bill was filed by the lord to recover the title deeds and court rolls. It was held, upon a plea of the statute, that the suit was brought too late, that which was tantamount to a conversion and adverse possession having taken place in 1822. The bill was retained for a year, to enable the plaintiffs to try an action at law. (Dean and Chapter of Wells v. Doddington, 2 Coll. C. C. 73.)

Effect of proceedings in equity in preventing the operation of the

statute.

Charities are within the operation of this section. (Att.-Gen. v. Mag- Charities. dalen College, Oxford, 6 H. L. C. 189. See the note to sect. 25, post.) In order to prevent the operation of the statute in a court of equity in a matter of simple contract, it was sufficient if the bill was filed within six years after the accruer of the right to sue, although the subpoena was not sued out till after the expiration of that period. (Coppin v. Gray, 1 Y. & Coll. C. C. 205; Purcell v. Blennerhassett, 3 Jones & L. 24.) With reference to the Statute of Limitations, an amended bill will date from the day of the filing of the original bill, and not from the day of the amendment. (Blair v. Ormond, 1 De G. & S. 428; Byron v. Cooper, 11 Cl. & Fin. 556; Plowden v. Thorpe, 7 Cl. & Fin. 164; Att.-Gen. v. Hall, 11 Price, 760.) Although the mere filing of a bill will operate by itself to save the bar of the statute, yet the court will know how to deal with any improper delay, by not giving the benefit of the statute to the plaintiff, if there was anything in his conduct to disentitle him to its assistance. (Forster v. Thompson, 4 Dru. & War. 318; Coppin v. Gray, 1 Y. & Coll. C. C. 205; Boyd v. Higginson, Flan. & K. 603.) When a defendant is out of the jurisdiction, and the bill prays process against him

3 & 4 Will. 4, c. 27, s. 24.

Pendency of suits.

Lunacy.

when he shall come within it, the operation of the Statute of Limitations is suspended, though he has neither been served nor appeared in the suit. (Hele v. Lord Bexley, 20 Beav. 127.) A plaintiff was required to account for the delay of nineteen years in filing his bill, where the circumstances of the parties had changed by deaths; and the foundation of the suit being a legal demand, the court, after such delay, declined to act, unless the demand was established in an action. (Blair v. Ormond, 1 De G. & S. 428.)

A testator died in 1821, having devised and bequeathed his real and personal estate to trustees upon certain trusts. In 1826, a bill was filed for the execution of the trusts as to the personal estate. In 1847, a supplemental bill was filed raising questions on the will as to the real estate in which the heir who was then unknown was interested; and in 1849, another supplemental bill was filed to bring the heir who was then ascertained before the court: it was held, that the heir was barred by lapse of time from claiming the real estate adversely to the trustees, for the institution of a suit to carry the trusts of a will into execution could not preserve the rights of the heir who claimed adversely to such will, but that the heir-at-law was not barred from claiming part of the real estate as being in the events that had happened undisposed of and held by the trustees in trust for him. (Simmons v. Rudall, 1 Sim., N. S. 115; 15 Jur. 102.)

The existence of a creditors' suit for the administration of the estate of a deceased debtor does not prevent the operation of the statute against a debt, in respect of which no claim is made under the decree. (Tatam v. Williams, 3 Hare, 347.) The right of a vendor to enforce his lien for unpaid purchase-money is not preserved by the existence of a suit by the creditors of the devisor of the estate under whose will the sale took place, nor by suits by the residuary devisees and legatees of the purchaser for the administration of his estate. (Toft v. Stephenson, 7 Hare, 1.) See also Alsop v. Bell, 24 Beav. 451, and the note under sect. 40 (post) as to when time ceases to run in the case of claims brought in under decree in administration suits.

An ejectment bill, filed in 1842, stated that the plaintiff's alleged right to the land accrued in 1812; that a bill had been filed in 1824 to recover the property; and that an ejectment had been brought in 1832, which was stayed until the plaintiff had paid the costs of a former ejectment; but it did not state the result of the suit or action: it was held, that it must be inferred that they had failed, and that they did not prevent the operation of the Statute of Limitations. (Bampton v. Birchall, 5 Beav. 67.)

A plaintiff brought an action of ejectment against a person in possession, and afterwards filed a bill of discovery in aid of the action, and to restrain the defendant from setting up outstanding terms. By the death of the defendant the suit abated, and the benefit of the action at law became lost. After twenty years' adverse possession, the plaintiff having filed a bill of revivor, a demurrer thereto was allowed, on the ground that no effectual proceeding could now be had at law, and that the discovery and relief sought would therefore be useless. (Bampton v. Birchall, 11 Beav. 38; 1 Phill. C. C. 568.)

Where a creditor is prevented from recovering by lunacy time will not run. (Stedman v. Hart, Kay, 607.) But proceedings in lunacy were held not to exclude the operation of the statute on a promissory note. (Rock v. Cooke, 1 De G. & Sm. 675; 17 L. J., Ch. 93; 12 Jur. 5.) A petition in lunacy, after the death of the lunatic, by his committee, and a reference to the master thereon, followed by a report finding that a sum of money had been expended by the committee in the maintenance of the lunatic, is not a proceeding which will take the claim of the committee out of the Statute of Limitations, as against the heir-at-law of the lunatic, who was not a party to the application. (Wilkinson v. Wilkinson, 9 Hare, 204.) Where a fund in the hands of a lunatic as executrix was carried over to an account in the names of herself and other persons interested, and the income was paid to her, it was held that the order of court for the carrying over of the fund preserved the right of the parties interested, but that arrears of income could only be recovered for six years. (Re Walker,

c. 27, s. 24.

L. R., 7 Ch. 120.) Where time has commenced to run against the right of 3 & 4 Will. 4, a legatee to recover his legacy, and the executor is subsequently found a lunatic, time will continue to run during the lunacy. (Boldero v. Halpin, 19 W. R. 320.)

Although the appointment of a receiver by the Court of Chancery does Effect of appointnot prevent the bar under the statute against a stranger, yet it will prevent ment of a receiver. time running in favour of a stranger to the suit. (Wrixon v. Vize, 3 Dru. & War. 104, see p. 123; Parkinson v. Lucas, 28 Beav. 627.) The possession of the receiver in a cause in which a trustee of the legal estate is made a party as such, may fairly be treated as the possession of the trustee. For many purposes the possession of the receiver is the possession of the party entitled to the lands, and time will not run against a person in possession. (Gresley v. Adderley, 1 Swans. 579; Boehm v. Wood, Turn. & R. 345; Wrixon v. Vize, 3 Dru. & War. 104. See Groome v. Blake, 8 Ir. C. L. R. 428; Re Butler's Estate, 13 Ir. Ch. R. 453.)

The appointment of receiver in the matter of an infant will not prevent the operation of the Statute of Limitations on a claim affecting the minor's estate, notwithstanding the fact, that the master, in a report ascertaining the nature of the minor's property, has expressly found that the minor's estate was subject to that incumbrance. (Harrison v. Duignan, 2 Dru. & War. 295. See Greenway v. Bromfield, 9 Hare, 203.

Where, by the interposition of a court of equity to prevent an act right- When equity will fully or wrongfully intended, the defendant has lost a remedy at law, a court prevent Statute of Limitations being of equity will give him a remedy equivalent to that from which the inter- used as a bar. position of such court has debarred him. Thus, where the Statute of Limitations has run pending an injunction, the court will restrain a debtor from taking advantage of the statute. (Anon., 2 Cas. Ch. 217; Brown v. Newall, 2 M. & Cr. 572.) And a court of equity will supply a defect in any title which has been prejudiced by an order of the court. If, for instance, an injunction has been continued so long as to deprive a party of his legal remedy, who has a clear right to recover at law, a court of equity would restrain the party who obtained the injunction from pleading the Statute of Limitations. (Fyson v. Pole, 3 Y. & Coll. 273.) So equity will give interest on the arrears of an annuity (Morgan v. Morgan, 2 Dick. 643; see Grant v. Grant, 3 Sim. 340, see p. 364; 3 Russ. 598, and see p. 607), where the annuitant, with a term of years and a power of entry and distress, had by means of the injunction been prevented from proceeding with an action of ejectment, which had been commenced for recovery of such arrears. So a party who has been restrained in equity from proceeding at law, while the debt was under the penalty of the bond, will be entitled to the principal and interest beyond the penalty. (Duval v. Terry, Show. P. C. 15, cited in Grant v. Grant, 3 Russ. 607; see O'Donel v. Browne, 1 Ball & B. 262.) Where a party applies to a court of equity, and carries on an unfounded litigation, protracted under circumstances, and for a length of time, which deprives his adversary of his legal rights, a court of equity will supply and administer, within its own jurisdiction, a substitute for that legal right, of which the party so prosecuting an unfounded claim has deprived his adversary. (Pultney v. Warren, 6 Ves. 73; The East India Co. v. Campion, 11 Bligh, 158, 186, 187; see Furnival v. Boyle, 4 Russ. 142; Morgan v. Morgan, 2 Dick. 643; Grant v. Grant, 3 Sim. 863; Sirdefield v. Price, 2 Y. & C. 73; Brown v. Newall, 2 M. & Cr. 572, 573.)

Express Trust.

trust, the right

25. Provided always, and be it further enacted, that when In cases of express any land or rent shall be vested in a trustee upon any express shall not be trust, the right of the cestui que trust, or any person claiming deemed to have through him, to bring a suit against the trustee, or any person conveyance to a claiming through him, to recover such land or rent, shall be purchaser. deemed to have first accrued, according to the meaning of this

accrued until a

3 & 4 Will. 4, c. 27, s. 25.

This section applies to express trusts only.

Who are express trustees.

act, at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him (s).

(s) This section is confined to express trusts; that is, trusts expressly declared by a deed or a will, or some other written instrument; it does not mean a trust that is to be made out by circumstances; the trustee must be expressly appointed by some written instrument, and the effect is, that a person who is under some instrument an express trustee, or who derives title under such a trustee, is precluded, how long soever he may have been in the enjoyment of the property, from setting up the statute; but if a person has been in possession, not being a trustee under some instrument, but still being in under such circumstances that the court, on the principles of equity, would hold him a trustee, then this section does not apply, and if the possession of such a constructive trustee has continued for more than twenty years, he may set up the statute against the party who but for the loss of time would be the right owner. (Per Kindersley, V.-C., Petre v. Petre, 1 Drew. 393.) The rule that trusts are not within the Statute of Limitations was held not to apply, where a claim was made after a great length of time against a trustee by implication of law arising upon a doubtful equity. (Townshend v. Townshend, 1 Cox, 28; 1 Bro. C. C. 550.) Though no time bars a direct trust as between cestui que trust and trustee, a court of equity will not allow a man to make out a case of constructive trust at any distance of time; for where the length of time would render it extremely difficult to ascertain the true state of the fact, or where the true state of the fact is easily ascertained, and where relief would originally have been given upon the ground of constructive trust, it is refused to a party, who after long acquiescence comes into a court of equity to seek that relief. (Beckford v. Wade, 17 Ves. 97; Ex parte Hassell, 3 Y. & Coll. 622; Bell v. Bell, 1 Lloyd & G. temp. Plunket, 65. See Bonny v. Ridgard, cited 4 Br. C. C. 138.) In Salter v. Cavanagh (1 Drury & Walsh, 668), it was held, that where a party had been expressly named in a will, his representatives were trustees within this section; and that though a constructive trust would be barred by that statute, and might have been barred previously to it by length of time, yet that that only applied to cases where the trust did not arise on the face of the instrument, but was to be made out by evidence. (See as to constructive trusts, Lewin on Trusts, 147 et seq., 5th ed.)

Where a person acted as trustee of a will containing express trusts of realty, though the trust estate was not vested in her, she was held to have placed herself in the position of an express trustee. (Life Association of Scotland v. Siddall, 3 De G., F. & J. 58.) A cestui que trust of real estate under a will was discharged in 1825 under the Insolvent Act, but omitted the estate from his schedule. In 1831, he became bankrupt, and his assignee in bankruptcy took a conveyance of the legal estate from the trustee, in trust for the creditors under the bankruptcy: held, that the legal estate thereby became vested in the assignee upon an express trust within this section, viz., the trust declared by the will, the benefit of which belonged to the creditors under the insolvency. (Sturgis v. Morse, 3 De G. & J. 1.) See also Drummond v. Sant, L. R., 6 Q. B. 768.

A trust for sale of land by way of security for money lent is not an express trust within this section. (Locking v. Parker, W. N. 1872, p. 201.) Where lands in Ireland held under church leases were settled upon A. for life, with remainder to several as tenants in common, and one of the remaindermen entered into possession of the lands and procured a fee-farm grant to himself: it was held, that he did not take the fee-farm grant as a trustee within this section for himself and his co-tenants. (Re Dane's Estate, I. R., 5 Eq. 498.) Where an executor assigned certain leaseholds belonging to his testator to a purchaser at an undervalue, the purchaser having notice of the trusts of the will, and twenty-three years afterwards

a bill was filed to set aside the assignment, it was held that the purchaser 3 & 4 Will. 4, was not an express trustee within this section. (Pyrah v. Woodcock, 24 L. T., N. S. 407.) And see the cases quoted, 205, post.

c. 27, s. 25.

trustees.

Where a trust is created by the act of parties no time is a bar to'relief; but where there is no trust, except such as is created by the decree of the court on setting aside the transaction, time runs from the discovery of circumstances which constitute the right to relief. (Marquis of Clanricarde v. Henning, 30 Beav. 175, which was the case of a purchase by a solicitor Purchase by from his client.) The rules of equity as to such a purchase, and the opera- solicitors and tion of lapse of time upon the right to relief in such a case are considered in Gresley v. Mousley, 4 De G. & J. 78. In one case the purchase of trust property by trustees for their own benefit was set aside, after a considerable lapse of time and several assignments. (Att.-Gen. v. Lord Dudley, Coop. C. C. 146.) But in another case, a bill to set aside a purchase by a trustee for himself and his children was dismissed, merely on the ground of the lapse of eighteen years. (Gregory v. Gregory, Coop. C. C. 201. See Champion v. Rigby, 1 Russ. & M. 539.) As to the time within which a sale to trustees may be set aside, see Lewin on Trusts, 369, 5th ed.

Sect. 25 qualifies sect. 40 where

land is vested in trustees upon express trust,

Where land is vested in trustees, upon express trusts to secure payment of charges, debts or legacies, this section qualifies the provisions of sect. 40 (post), though it was formerly held otherwise in Ireland. ( (Knox v. Kelly, 6 Ir. Eq. R. 279; Young v. Wilton, 10 Ir. Eq. R. 10.) Thus, under a marriage settlement a term of years was vested in trustees for raising to secure payment 10,000l. for the younger children of the marriage, and subject thereto the of charges, estates were limited to the first and other sons in tail male. Much more than twenty years after the 10,000l. ought to have been raised and paid, the younger children filed a bill to have that sum raised. It was held, that the relation of trustee and cestui que trust existed between the parties, and that the plaintiffs' claim was not barred by the 40th section of this act. (Young v. Lord Waterpark, 13 Sim. 204; affirmed by Lord Lyndhurst, C., 10 Jur. 1; 15 L. J., Ch. 63.) By settlement of 1786, lands were conveyed to trustees upon trust to raise 5007. for the issue of the marriage, and subject thereto for the husband and his heirs. In 1792, the husband and the trustees joined in demising the lands to B., in consideration of a sum of money paid to the husband, and a bond for 500l. given by B. to the trustees; and it was declared that B. should not be liable to be sued for the 5007. until the trust vested in the trustecs relative to the 5007. should be executed or spent, pursuant to the settlement of 1786, without affecting or in any way charging or incumbering the lands in the hands of B., his heirs or assigns, or until the husband or his heirs should otherwise discharge and exonerate the lands from the said sum of 5007. There was issue of the marriage one child only, a daughter, who married J. S., and died; and J. S. became entitled to the 5007. The trustees entered judgment on the bond against B., and in 1812 assigned it to J. S. No part of the principal or interest of the 5007. had been paid, or acknowledgment given, since 1812, the bill being filed in 1844. It was held, that the demand of J. S. to the 500l. was not barred by the Statute of Limitations. The assignment of the judgment in 1812 to J. S., being a transaction to which the trustee and himself alone were parties, merely substituted him in the place of the trustee, and did not discharge the estate from the original trust, or vary the rights of the partics to the 500l. The trust created by the settlement of 1786 for raising the 5007. was an express trust, and within this section. (Blair v. Nugent, 3 Jones & L. 660, 661; see Lawton v. Ford, L. R., 2 Eq. 97.)

Where a testator in the introductory part of his will directed all his just to secure debts, debts to be paid, and then devised his lands, subject to the payment thereof, to trustees upon trust for other persons in succession, it was held that a trust was created for the payment of the testator's debts, and that the right of a judgment creditor was not affected by the 40th section of this statute, but it was taken out of it by the saving of this section. This case appears to have been decided expressly on the ground that the estate was vested in trustees, and that on the whole construction of the will the pay