T. 6, CH. 2. within same time as actions. PART II rent in equity shall bring any suit to recover the same but within the period during which by virtue of the provisions hereinbefore contained he might have made an entry or distress or brought an action to recover the same respectively, if he had been entitled at law to such estate, interest, or right in or to the same as he shall claim therein in equity." Charitable trusts are within this section (a). 1493. Acorner of right in Cases of express trust. Accruer of right in cases of fraud. Jurisdiction of equity to By s. 25, "when any land or rent shall be vested in a trustee upon any express trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee, or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of this 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." [A security in the form of a trust for sale is a mortgage within the meaning of stat. 37 & 38 Vict. c. 57, s. 7, and is not included in this section ().] 1494. By s. 26, in cases of concealed fraud, the right shall be deemed to have accrued when the fraud shall or might with reasonable diligence have been first discovered. 1495. By s. 27, "nothing in this Act contained shall be deemed refuse relief. to interfere with any rule or jurisdiction of Courts of Equity in refusing relief on the ground of acquiescence or otherwise to any person whose right to bring a suit may not be barred by virtue of this Act." 1496. Barring mortgagor. [By s. 7 of stat. 37 & 38 Vict. c. 57, a mortgagor is to be barred at the end of twelve years from the time when the mortgagee took possession, or from the last written (a) Magdalen Coll. v. Att.-Gen., 6 H. L. Cas. 189, (b) Locking v. Parker, L. R. 8 Ch. Ap. 30; 42 L. J. (Ch.) 257. PART III. ecclesiastical synary cor in regard to land or rent. acknowledgment. This section takes the place of s. 28, T. 6, CH. 2. which is repealed, of stat. 3 & 4 Will. 4, c. 27 (a).] 1497. By s. 29 [of stat. 3 & 4 Will. 4, c. 27,] no lands or rents Bar to are to be recovered by any ecclesiastical or eleemosynary or eleemocorporation sole after two incumbencies and six years, or poration sole such further time as will make up sixty years from the accruer of the right. [This section applies to the Ecclesiastical Commissioners where a right of action accrues before the property and rights of a deanery are vested in them by stat. 3 & 4 Vict. c. 113, ss. 50, 57; and therefore such actions by them are not governed by stat. 37 & 38 Vict. c. 57, s. 1 (b).] 1498. right of or advow. By s. 30, no benefice is to be recovered after three Bar to adverse incumbencies or such further period as will make presentation up sixty years. But, by s. 31, an incumbency, after pro- son. motion to a bishopric, is to be deemed a continuation of the incumbency of the clerk who was made a bishop. By s. 33, however, no benefice is to be recovered after a hundred years' adverse possession. 1499. of the right, as well as the remedy. By s. 34, "at the determination of the period limited by Extinction this Act to any person for making an entry or distress or bringing any writ of quare impedit or other action or suit, the right and title of such person to the land, rent, or advowsons for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished." [But see Markwick v. Hardingham, L. R. 15 Ch. D. (Ap.) 339.] 1500. rent to be receipt of By s. 35, "the receipt of the rent payable by any tenant Receipt of from year to year or other lessee, shall, as against such deemed a lessee or any person claiming under him (but subject to profits. the lease), be deemed to be the receipt of the profits of the land for the purposes of this Act." 1500a. (b) Ecclesiastical Commissioners v. Rowe, L. R. 5 Ap. Cas. 736. PART III. T. 6, CH. 2. Abolition of real and mixed actions, except, etc. By s. 36, real and mixed actions are abolished, except for dower, quare impedit, and ejectment. 1501. By s. 39, "no descent cast, discontinuance, or warranty which may happen or be made after the said 31st day of No descent December, 1833, shall toll or defeat any right of entry or tinuance, or action for the recovery of land." 1502. cast, discon warranty, to defeat a right of entry or action. Bar to money charged upon or payable out to legacies. [By s. 8 of stat. 37 & 38 Vict. c. 57, no action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, of land, and at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent; and in such case no such action or suit or proceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one, was given." This section applies to the case of a covenant to secure payment of a mortgage debt, and even to a collateral bond for that purpose. It is substituted for the repealed s. 40 of stat. 3 & 4 Will. 4, c. 27; and bars the remedy only, but does not extinguish the right (a).] 1503. Statutes of It may be stated generally that as between cestui que inapplicable trust and trustee, in the case of a direct trust, there is no bar, because there is no adverse possession (). And by to express trusts. (a) Sutton v. Sutton, L. R. 22 Ch. D. (Ap.) 511; Fearnside v. Flint, L. R. 22 Ch. D. 579. As to arrears of dower, see supra, par. 491; and as to arrears of rent or interest, or damages in respect of such arrears, see supra, par. 83. (b) Lewin on Trusts, 5th ed. 620; Drummond v. Sant, L. R. 6 Q. B. 763, 66 T. 6, CH. 2. the stat. 36 & 37 Vict. c. 66, s. 25 (2), it is enacted that PART III. no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations." [But equity always discountenances laches and delay, and in granting or refusing relief, acts in analogy to the law (a).] 1504. [With respect, however, to actions by persons entitled to charges and legacies payable out of land, and secured by express trusts, it is enacted by s. 10 of stat. 37 & 38 Vict. c. 57, that "after the commencement of this Act no action, suit, or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, at law or in equity, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust." This does not, like stat. 36 & 37 Vict. c. 66, s. 25 (2), apply as between trustee and cestui que trust; but has reference to the land charged, and the persons entitled to the charge.] 1505. claims on property of intestates. By the stat. 23 & 24 Vict. c. 38, s. 13, "after the 31st Bar to of December, 1860, no suit or other proceeding shall be brought to recover the personal estate, or any share of the personal estate, of any person dying intestate, possessed by the legal personal representative of such intestate, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of such estate or share, or some interest in respect thereof, shall have been accounted for (a) Bright v. Legerton (No. 1), 29 Beav. 498; Thomson v. Eastwood, L. R. 2 Ap. Cas. 215. PART III T. 6, CH. 2. or paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit shall be brought but within twenty years after such accounting, payment, or acknowledgment, or the last of such accountings, payments, or acknowledgments, if more than one, was made or given." [This was enacted to supplement stat. 3 & 4 Will. 4, c. 27, s. 40, which did not include cases of intestacy. And if, as would appear, s. 8 of stat. 37 & 38 Vict. c. 57 does not extend to such cases, the next of kin will not be barred for twenty years, although an action by a legatee is, under the last-mentioned section, barred in twelve years.] 1506. |