3 & 4 Will. 4, c. 27, s. 16.

description, is matter of evidence, and not of positive regulation and enactment, varying according to the ages and sex of the persons dying in the same shipwreck, as it is in the French Code, and in the absence of evidence there is no conclusion of law on the subject. (Ib.)

Where a party who took under a will had not been heard of for seven years, the testator having died after three years had elapsed, and the advertisements which were issued on the death of the testator had failed to produce any information, it was decided that such legatee must be assumed to have survived the testator, and could not be presumed to have died at any particular period during the seven years. (Dunn v. Snowdon, 11 W. R. 160)

A young sailor, who was last seen in the summer of 1840 going to Portsmouth to embark, was presumed to have survived his grandmother, who died in March, 1841. (Re Tindall, 30 Beav. 151.)

There is no presumption of law arising from age and sex as to survivorship among persons whose death is occasioned by one and the same cause. Nor is there any presumption of law that all died at the same time. The question is one of fact, depending wholly upon evidence; and if the evidence does not establish the survivorship of any one, the law will treat it as a matter incapable of being determined. (Wing v. Angrave, 8 H. L. C. 183.)

In Sillick v. Booth, (1 Y. & Coll. C. C. 117,) it was held that evidence of health, strength, age or other circumstances may be given in cases of the above nature tending to the judicial presumption that one of two brothers who perished by shipwreck survived the other. (See Gen. Stanwix's case, Fearne's Post. Works, 38; Rex v. Dr. Hay, 1 Wm. Bl. 640; Swinburn, part 7, s. 33; Wright v. Netherwood, 2 Salk. 593, n.; Hitchcock v. Beardsley, West's Rep. t. Hardwicke, 445; Bradshaw v. Toulmin, 2 Dick. 633; Mason v. Mason, 1 Mer. 308; Taylor v. Diplock, 2 Phill. Ecc. C. 261; In bonis Selwyn, 3 Hagg. Ecc. R. 741; Colvin v. The King's Proctor, 1 Hagg. Ecc. 92.)

It will be observed, that this act provides that no action shall be brought but within forty years after the right first accrued, and that no further time, beyond the twenty or ten years, is allowed for a succession of disabilities.

But no action, &c. shall be brought beyond forty years after the right of action accrued.

A purchaser entitled to evidence of sixty years' title.

EXTREME PERIOD OF LIMITATION FIXED.
Forty Years.

17. Provided nevertheless, and be it further enacted, that no entry, distress or action shall be made or brought by any person who, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such forty years, or although the term of years, from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired (i).

ten

(i) The period for which a good title is required to be shown is still sixty years, notwithstanding the stat. 3 & 4 Will. 4, c. 27. Lord Lyndhurst, C., said, "It was supposed that, by the operation of that act, it was not necessary that the title should be carried back, as formerly, to a period of sixty years, but that some shorter period would be proper. It appears that con

veyancers have entertained different opinions on the subject; but, after considering it, I am of opinion, that the statute does not introduce any new rule in this respect; and that to introduce any new rule shortening the period would affect the security of titles. One ground of the rule was the duration of human life, and that is not affected by the statute. It was true that, in other respects, the security of a sixty years' title is better now than it was before; but I think that it is not a sufficient reason for shortening the period-for adopting forty years, or, as it has been suggested by a high authority, fifty years, instead of the sixty. I think the rule ought to remain as it is, and that it would be dangerous to make any alteration." (Cooper v. Emery, 1 Phill. C. C. 388.)

3 & 4 Will. 4,

c. 27, s. 17.

section.

A feme sole seised in fee married, and she and her husband ceased to be Cases on conin the possession or enjoyment of the land, and went to reside at a distance struction of this from it. They both died at times which were not shown to be within forty years from their ceasing to occupy. The wife's heir-at-law brought ejectment against the person in possession within twenty years of the husband's death, and within five years of the passing of this statute, but more than forty years after the husband and wife ceased to occupy: it was held, that the heir-at-law was barred by the 17th section of the statute, though it did not appear when or how the defendant came into possession, and though proof was offered that the wife had levied no fine. Denman, C. J., said, "The fact being clear that within the terms of 3 & 4 Will. 4, c. 27, s. 3, the plaintiff's mother was dispossessed or discontinued the possession or receipt of the rents above forty years before the action brought, the action was clearly barred by the 17th section of the same statute. Some argument was raised on the question whether the possession was adverse or not, but the terms of that clause are unequivocal, and one of its objects was to avoid the necessity of inquiring into facts of so ancient a date. If the persons actually in possession could be shown to have held under him through whom the plaintiff claims, the possession of the former might be regarded as the possession of the latter, but in this case there was not a single fact from which such an inference could be drawn. On the contrary, the departure of the former possessors to a distance without appearing to have received any rent or made any demand, is the strongest evidence of their intending to abandon at once all occupation and all claim of ownership. And as the title of the plaintiff's ancestor rested on no documents, but was merely evidenced by possession at an early period, that ancestor's entire desertion of the premises for so long a time goes far to show a consciousness that the anterior occupation was without title. It is true that if Mrs. C. was the owner, her husband was tenant by the curtesy, and that their son's right of possession did not accrue till after his father's death; but this furnishes no answer to the positive enactment of limitation in the 17th clause." (Doe d. Corbyn v. Bramston, 3 Ad. & Ell. 63; S. C. nom. Doe d. Corbyn v. Branson, 4 Nev. & M. 664.) There is a material distinction between the case of a husband and wife making the possession derelict as was the case in Doe v. Bramston, and the case where the husband and wife are seised in fee in right of the wife, and the husband, by a conveyance which does not bind the wife, purports to convey the fee. Because the effect at law is, that such conveyance merely passes to the grantee of the husband that estate which he had and might have held during the continuance of the coverture. In such case the right of the wife comes within the fourth description of interest in the 3rd section of the statute 3 & 4 Will. 4, c. 27. If husband and wife, being seised in fee in right of the wife, convey to a purchaser by deed without fine, the wife, if she survives, and if not her heir, may, on the husband's death, recover the land, notwithstanding the purchaser may have been in possession for more than forty years. (Jumpsen v. Pitchers, 13 Sim. 327.) The purchaser held under the husband by means of the lawful estate which the husband could create, and the creation of which had the effect of making that which was the wife's present estate, a future estate, within the meaning of the fourth description in the 3rd section of the statute. (Ante, p. 165.) In 1787, a lease was made by a lunatic to his brother for lives renewable for ever. The lessee, who was the last life in that lease, died in 1836. Various proceedings were had in the lunacy matter respecting the lease and

3 & 4 Will. 4, c. 27, s. 17.

the rent reserved thereby, the result of which was that, without recognizing the lease as a valid demise, the lessee was permitted to hold part of the lands demised, paying the entire reserved rent. From 1836 to 1842 the profits were received by the heir of the lessee. In 1842 the lessor died, and the fee descended upon the heir of the lessee, who was also heir of the lessor. It was held, on a bill filed by a judgment creditor of the lessee, that the latter had not acquired either the fee-simple, subject to a perpetual rent equal to the rent reserved, or a right to a renewal, by reason of the Statute of Limitations (3 & 4 Will. 4, c. 27), length of time, or the proceedings in the lunacy matter; and that the profits received by the heir of the lessee, from 1836 to 1842, were not assets of the lessee. For although the lessee had enjoyed the property demised for three lives, and no one attempted to impeach the lease, yet the court had no power to give validity to the covenant for renewal contained in it. The covenant was in itself simply void, and in itself created no obligation on the part of the lunatic, who was incapable of contracting, and the lapse of time did not enable the court to give validity to the covenant, which was void at law. (Fulton v. Creagh, 3 Jones & L. 329.)

No further time

to be allowed for a succession of disabilities.

Successive Disabilities.

18. Provided always, and be it further enacted, that when any person shall be under any of the disabilities hereinbefore mentioned at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person (k).

(k) This section is so far retrospective as to extend to a case where the first person under disability died before the passing of the act. A claimant to land in the colony of New South Wales, whose ancestor died under disability in 1835, and who himself continued under disability till he brought an action of ejectment in 1856, was barred by a colonial ordinance of 1837, which applied the 3 & 4 Will. 4, c. 27 to the colony of New South Wales. (Devine v. Holloway, 9 W. R. 642; 14 Moore, P. C. C. 290.) It is easy to imagine infancy, coverture, lunacy and absence beyond the seas, so to follow one another with respect to a particular line of heirs, that by successive disabilities the period of limitation might be indefinitely protracted; the object of this section of the act is, where ten years or more have expired from the time when the right accrued to a party dying under disability, to allow his heir only ten years whether under disability or not. Successive disabilities in the same person had been held to prevent the operation of the Statute of Limitations, and to give to the heir ten years after the death of his ancestor to enforce his claim by ejectment. Therefore, when A., a minor, having herself been dispossessed of certain lands in 1787, married in 1794, and being a feme covert, attained her full age in 1796, and died in 1827, it was held that an ejectment was well brought by her heir. (Lessee of Supple v. Raymond, 1 Hayes, Ir. Rep. 6. See 2 Prest. Abstr. 340; Blansh. Lim. 21, 22.)

Beyond the Seas.

19. No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney or Sark, nor any islands adjacent to any of them (being part of the dominions of his Majesty), shall be deemed to be beyond seas within the meaning of this act (1).

(1) See 19 & 20 Vict. c. 97, s. 12, post. It was held that Dublin, or any place in Ireland, was beyond the sea within the meaning of the statute 21 Jac. 1, c. 16, s. 7. (Nightingale v. Adams, Show. 91.) Of course, Scotland was not considered beyond sea. (King v. Walker, 1 Bl. Rep. 286.) The 19th section of the stat. 3 & 4 Will. 4, c. 27, which removes disabilities by reason of residence in Ireland, &c., is applicable to cases of residence in Ireland before the passing of the statute, if the controversy has not arisen till after the passing of it. (Ex parte Hassell, In re Manchester Act, 3 Jur. 1101; 3 Y. & Coll. 617. See Battersby v. Kirk, 2 Bing. N. C. 603; Lane v. Bennett, 1 Mees. & W. 70; Tyrw. & G. 441; ante, p. 199. Ruckmaboye v. Mottichund, 8 Moore, P. Č. C. 4.)

IV. CONCURRENT RIGHTS.

to an estate in

barred, the right son to future estates shall also be

of the same per

barred.

20. When the right of any person to make an entry or dis- When the right tress, or bring an action to recover any land or rent to which possession is he may have been entitled for an estate or interest in possession, shall have been barred by the determination of the period hereinbefore limited, which shall be applicable in such case, and such person shall, at any time during the said period, have been entitled to any other estate, interest, right or possibility, in reversion, remainder or otherwise, in or to the same land or rent, no entry, distress or action shall be made or brought by such person, or any person claiming through him, to recover such land or rent, in respect of such other estate, interest, right or possibility, unless in the meantime such land or rent shall have been recovered by some person entitled to an estate, interest or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession (m).

(m) Copyhold land was surrendered, in 1798, to the husband and wife for their joint lives, with remainder to the heirs of the husband. In 1805, the husband absconded and went abroad, and was never afterwards heard of. In 1807, a commission of bankruptcy issued against him, and the usual assignment of his estate was made by the commissioners to his assignee. The wife occupied the copyhold estate until her death in 1841, whereupon the assignee was admitted: it was held, that an ejectment by the assignee brought after her death was in time, for that the husband's reversion in fee was a future estate within the meaning of the stat. 3 & 4 Will. 4, c. 27, s. 3. The court thought it clear that the husband, if he had not been bankrupt, would have been entitled to the possession during the joint lives of himself and wife, and that upon his death the wife was entitled to possession for her life, and the heirs of the husband on the expiration of their joint lives. There would, however, be only one interest, and the assignee being barred as to the estate in possession during the continuance of the husband's life, it was urged that he was barred altogether by the 20th section. The court thought, supposing the 20th section to apply, the proviso at the end of it applied also, because the wife had been in possession during the whole

Cases on the construction of this

section.

3 & 4 Will. 4, c. 27, s. 20.

period of her life, until the time of her death; and though she had not recovered that possession by virtue of legal proceedings, it was a sufficient recovery for the purpose of that section, if she had been in the actual possession during the whole of her life. Until her death, there was no right in the assignee to take possession, and the action was brought in time. (Doe d. Johnson v. Liversedge, 11 Mees. & W. 517.)

In 1784, premises were leased to H. I. for three lives. H. I., by his will, devised all his estate and interest in the premises to his wife, A. I., her heirs and assigns. A. I., in 1793, conveyed the estate so devised to her to her son R. I., and the heirs of his body, with a proviso that if he should have no child living at his death, the limitation thereby made should cease, and the estate should revert to A. I., her heirs and assigns. In 1811, R. I. purchased the reversion in fee in the premises, expectant on the lease for lives, which was duly conveyed to him, and at the same time an old satisfied term of 5000 years affecting the premises was assigned to a trustee for him, to attend the inheritance. R. I. died in 1812, without issue, leaving his nephew, L. I., his heir-at-law, and the heir-at-law of A. I. The lease for lives determined in 1835. For upwards of twenty years from the death of R. 1. the premises were held adversely to L. I. It was held, that his right of entry was barred thereby, and that he had not a new right of entry on the determination of the lease for lives in 1835. It was held, also, that since the stat. 8 & 9 Vict. c. 112, the outstanding term would have been no defence to an ejectment by L. I., or any person claiming under him. That branch of the 3rd section of the Limitation Act, 3 & 4 Will. 4, c. 27, which relates to estates in reversion expectant on the determination of a particular estate, applies only to cases where another person than the reversioner is entitled to the particular estate. (Doe d. Hall v. Moulsdale, 16 Mees. & W. 689.)

This section of the act is in derogation of the old maxim, borrowed from the civil law, "quando duo jura concurrunt in unâ personâ equum est ac si essent in diversis." (4 Rep. 118; 7 Rep. 2 b, 14 b; Plowd. 368.) Under the statute 21 Jac. 1, c. 16, s. 1, a party might have pursued his right of entry twenty years after it attached, although in the meantime the party might have had a different right, of which he was barred by more than twenty years' adverse enjoyment. Thus when a tenant in tail of lands in ancient demesne demised them by fine in the court of ancient demesne for three lives, and afterwards levied a fine of the reversion in the same court to the use of himself and his heirs, it being agreed that the fines in that court did not bar the estate tail, it was held that the first fine created a discontinuance, and the second did not; and that although the issue in tail did not bring their formedon within twenty years after the death of their ancestor, they were not barred of their right of entry within twenty years from the determination of the lease for lives. (Hunt v. Bourne, 1 Salk. 339; 2 Id. 421; 4 Br. P. C. 66. See ante, s. 5, p. 172.)

V. OPERATION OF THE STATUTE IN CASES OF ESTATES
TAIL.

Where Time has run against Tenant in Tail.

21. When the right of a tenant in tail of any land or rent to make an entry or distress, or to bring an action to recover the same, shall have been barred by reason of the same not having been made or brought within the period hereinbefore limited, which shall be applicable in such case, no such entry, distress or action shall be made or brought by any person claiming any