PART V.

LIMITATION OF RIGHTS TO REAL
PROPERTY.

CHAPTER I.

GENERAL EFFECT OF 3 & 4 WM. IV. C. 27, as
AMENDED BY 37 & 38 VICT. c. 57.

THE former part of this treatise had relation to the recovery of money. This part will relate to the recovery of land and such incorporeal hereditaments as are for the purposes of the limitations of actions on the same footing as land itself. The law on this subject at present depends on 3 & 4 Wm. IV. c. 27, and the amending Act, 37 & 38 Vict. c. 57, which substitutes twelve years as the period of limitation for twenty years, the time prescribed in the former Act.

PART V.

CH. I.

the law before 3 & 4 Wm. IV. c.

27.

Before the passing of the Act 3 & 4 Wm. IV. c. 27, the State of law on the subject was in a very confused and unsatisfactory state. A number of different sorts of actions were in use for the recovery of land and incorporeal hereditaments, and for these actions various periods of limitation had been provided by statute without any apparent regard to principle or uniformity. For the majority of actions in use, periods of limitation varying from sixty to thirty years were provided by 32 Hen. VIII. c. 2. Subsequently by 21 James I. c. 16 the period for a writ of

CH. 1.

PART V. formedon and for enforcing a right of entry was fixed at twenty years, subject to exceptions in cases of disability, and the possessory action of ejectment, which had in practice superseded all other remedies for the recovery of land, was limited to twenty years. By 4 Hen. VII. c. 24 a fine levied with proclamations by a person who had the actual seizin, whether by right or wrong, was a bar to persons who at the time of the fine or afterwards. had immediate rights of entry, if they allowed a period of five years to elapse without asserting their claim.

Effect of

the statute

27,

as amended

A right of entry on land might not only be lost by lapse of time, but might be taken away by a variety of other means without any notice to the rightful claimant, so that the dispossessed owner of land might frequently have a right to recover it by a real action, when he had no right of entry. On the other hand, a right of entry might be preserved notwithstanding twenty years' adverse possession by a mere entry or claim made on the land by the claimant without any disturbance of the enjoyment of the land by the person in possession, so that, after the period for commencing a real action had elapsed, a claimant might still retain a right of entry.

The evils resulting from the old state of the law were clearly pointed out in the first report of the Real Property Commissioners; and the statute 3 & 4 Wm. IV. c. 27 was framed almost entirely upon their recommendations for the amendment of the law (1).

The effect of this statute, as amended by 37 & 38 Vict. 3 & 4 Wm. c. 57, is to allow but one sort of action for the recovery of IV. c. land, to make this action applicable to all cases of by 37 & 38 legal claims, and to limit all persons to the period of Vict. c. 57. twelve years for the prosecution of their rights or for taking peaceable possession of the land.

Claims to incorporeal hereditaments enforceable by distress are made subject to similar limitations, and the

(1) First Report of Real Property Commissioners (1829), pp. 39–41.

statute provides for the extinction of the title as well as the remedy of the claimant.

By the 1st section of 37 & 38 Vict. c. 57, which is substituted for the 2nd section of 3 & 4 Wm. IV. c. 27, it is enacted that every right to recover any land or rent by entry, distress, or action shall be enforced within twelve years from the time when the right first accrued; and the 3rd, 4th, 6th, 7th, 8th, and 9th sections of 3 & 4 Wm. IV. c. 27, and the 2nd section of 37 & 38 Vict. c. 57, specify at what time in particular cases such right is to be deemed to accrue for the purposes of limitation; and it is amongst other things provided by 3 & 4 Wm. IV. c. 27 that no mere entry on land or continual claim made on or near it shall keep alive a right of entry which would otherwise be barred (1). All remedies for recovering land or rent which formerly existed in cases where the right of entry was gone are done away with by the abolition of real actions (2); at the same time, lest this should leave certain claimants without any remedy, it is enacted that no descent cast, discontinuance, or warranty, shall for the future defeat any right of entry (3); and, as fines were abolished by another Act of the same session of Parliament (3 & 4 Wm. IV. c. 74), no right of entry or action can now be taken away by any other means except lapse of time. By a subsequent section (4), when a sufficient period has elapsed to bar the right of entry, action or distress, the title in respect of which such right existed is simultaneously extinguished. This is the main scheme of the Acts, so far as regards legal rights to land and incorporeal heredita

(1) 3 & 4 Wm. IV. c. 27, ss. 10 & 11.

(2) 3 & 4 Wm. IV. c. 27, s. 36. This section is repealed by the Civil Procedure Acts Repeal Act, 1879 (42 & 43 Vict. c. 59), but the repeal (see s. 4, subs. 4) is not to revive or restore any "usage, practice, procedure, or other matter or thing not existing or in force" at the passing of the Act (i.e. 15th Aug. 1879).

PART V.

CH. I.

T

CH. I.

PART V. ments in general. Provision is made for an extension of the time in certain cases of disability, but in no case is the period of limitation to exceed thirty years (1). Limitations are provided for the claims of mortgagors where the mortgagees are in possession (2), and the claims of persons entitled to estates tail, or remainders expectant on such estates (3); the limitations in these cases correspond as nearly to those attached to other rights as the nature of the cases will allow. Suits in equity, which had not been expressly mentioned in previous Statutes of Limitations, were by the Act 3 & 4 Wm. IV. c. 27 limited to the same periods as actions at law, subject to exceptions in certains cases of fraud and trust (4).

Adverse

No statutes before 3 & 4 Wm. IV. c. 27 had provided any limitation for claims to church property and advowsons; but the Act 3 & 4 Wm. IV. c. 27 provided special limitations for these cases (5), the enactments on the subject of advowsons being mainly founded on suggestions made by Mr. Justice Blackstone in his Commentaries (6).

Before the passing of the statute 3 & 4 Wm. IV. c. 27, possession. the question frequently arose whether the possession of a person holding land without title was "adverse" to the right of the lawful claimant, or in other words, whether such possession was in its character inconsistent with the title of the true owner. Upon the authorities it was almost impossible to say what would constitute such adverse posssession, but the point was one of considerable importance, as it was settled that, unless the possession of a wrongful owner was adverse to the true title, the Statute of Limitations would not operate so as to bar the

(1) 37 & 38 Vict. c. 57, ss. 3 and 5.

(2) 37 & 38 Vict. c. 57, s. 7.

(3) 3 & 4 Wm. IV. c. 27, ss. 21 & 22, and 37 & 38 Vict. c. 57, s. 6. (4) 3 & 4 Wm. IV. c. 27, ss. 24-27.

(5) Sects. 29-33.

(6) Book III. Ch. XVI.

lawful claimant's right of entry (1). The difficulty was removed by the Act 3 & 4 Wm. IV. c. 27, which put an end to the doctrine of adverse possession, and the only question under the Acts now in force is whether twelve years have elapsed since the claimant's right accrued, whatever be the nature of the present holder's possession (2).

(1) See Taylor v. Horde and notes, 2 Sm. L. C. 9th ed. p. 632. (2) Nepean v. Doe, 2 M. & W. 894, 911. 2 Sm. L. C. 9th ed. p. 628.

PART V.

CH. I.