CH. V. the particular estate, is barred at the same time; and the PART V. statute does not begin to run in respect of such future estate, unless in the meantime some person entitled to a particular estate, subsequent to the one barred, shall have obtained possession. If this exception at the end of the 20th section had not been inserted, the effect would have been that if there were two successive tenants for life with remainder to the first in fee, and the estate for life of the first had been barred in favour of a trespasser against whom the second recovered possession, the property would, at the death of the second tenant for life, have belonged either to his representatives who clearly would have no title, or to the trespasser who had been already successfully ejected. It must be particularly observed that the right to the future estate is not affected, unless the person entitled to the estate in possession becomes entitled to the future estate before the estate in possession has been barred. If this were otherwise, the owner of a particular estate which was barred would, if he purchased an estate in remainder, acquire nothing, although the right of the remainderman from whom he purchased would have been unaffected. Nor is the right to the future estate affected, unless the particular estate in possession has been actually barred, and it is consequently unaffected if the particular estate determines before the prescribed period has run out. This is noticed by Lord St. Leonards (1) in commenting on the case of Doe v. Liversedge (2). In that case, copy- Doe v. hold property was limited to a husband and wife with Liversedge. remainder to the heirs of the husband. The husband went abroad in 1805, and was never heard of again. In 1807 he was made a bankrupt, and his property was vested in his assignees in bankruptcy. The wife remained in possession till her death in 1841, and within twenty years of that date the assignees brought ejectment against the devisee. The action was held to be in time, because, (1) Treatise on Property Statutes, p. 50. (2) 11 M. & W. 517. CH. V. PART V. although the assignees took all the husband's interest both for life and in remainder, yet the presumption was that the husband died before 1812; and the life interest. of the wife which she acquired by survivorship was one which had been limited or had taken effect after or in defeasance of the husband's estate or interest in possession within the meaning of the exception at the end of the 20th section, and had been recovered by her within the meaning of that exception. This case, as Lord St. Leonards remarks, could not have come within the 20th section at all, because, as the husband's particular estate was presumed to have determined before 1812, the title of the assignees to such interest could not have been barred; however, as the decision was given on the assumption that the 20th section applied, this case may be taken as an authority that, if a person entitled to an estate to take effect in defeasance of the estate in possession is shown to be actually in possession, it is immaterial for the purposes of the exception, notwithstanding the use of the word "recover," how the possession was acquired. It also decides that, if a tenant for life is ousted, not by a stranger but by a succeeding tenant for life who retains possession more than twelve years during the lifetime of the first and then survives him and retains possession, the right of the persons claiming the estate in remainder to which the ousted tenant for life was entitled will, under the exception in the 20th section, be preserved by the possession of the second tenant for life after the death of the first, and that such persons will have twelve years from the death of the second tenant for life wherein to assert their right, just as if the first tenant for life had been ousted by a stranger and their right had been preserved by the entry of the second tenant for life. Where owner of Where an estate pur autre vie and the remainder particular expectant on the determination of such estate became vested in the same person in circumstances which made it doubtful whether a merger had or had not taken estate is the imme diate reversioner. place, and the plaintiff claiming through this person brought her action less than twenty years after the life dropped, but more than twenty years after the estate pur autre vie accrued, and more than twenty years after the time when the merger (if any) would have taken place, it seems to have been admitted on all hands that, if a merger had taken place, the action would have been barred, and this must have been so on the principles laid down above (1). But it was considered unnecessary to decide that question, and, assuming that there was no merger, the claim to the reversion was held barred by the operation of the 20th section (2). In the circumstances of the case the action was clearly barred quâcunque via, but it is worth considering what would have been decided if it had been clear that there had been no merger, and if time had not run out against the estate pur autre vie before the last life dropped. The 20th section would then have had no operation. Now that section was not referred to in the argument for the defendant. The defendant's case was, assuming there was no merger, put upon this, that the 5th section of 3 & 4 Wm. IV. c. 27 (now the first part of the 2nd section of 37 & 38 Vict. c. 57) defined when the estate was to be deemed to have fallen into possession within the meaning of the 4th branch of the 3rd section, that the 5th section from its wording clearly applied only to cases where the particular estate was vested in some other person than the reversioner, and consequently it seems to have been contended that neither the 4th branch of the 3rd section nor the 5th section applied to the case, and therefore that time would run against the estate in remainder from the date when time began to run against the particular estate and would not begin to run afresh when that estate determined. This reasoning, although the 20th section was referred to in the judgment, was certainly acquiesced in to the extent that the 5th section did PART V. CH. V. PART V. CH. V. not apply where the owner of the particular estate was also the reversioner, and may perhaps be considered to have been acquiesced in altogether; the case may therefore be considered an authority that, if there can in any circumstances be a particular estate and reversion vested in the same person without merging, then, if the particular estate determines while time is running against it but before it is barred, the time continues to run, and does not begin to run afresh from the determination of the particular estate. It appears, however, somewhat difficult to see why the words of the 5th section of necessity lead to such a conclusion; and, in fact, in the case referred to, the 20th section seems rather to have been treated as giving an interpretation to the 5th section than merely as a proviso upon it. A somewhat similar point to that raised in Doe v. Moulsdale was raised by Pigot, C.B., in the Irish case of Poole v. Griffith (1), but as it was not actually involved in the decision, the observation of the C.B. cannot be considered in any way authoritative on the subject. The case of Doe d. Hall v. Moulsdale was followed by the Court of Queen's Bench in Ireland in the case of Clarke v. Clarke (2). In that case a testator devised certain lands to A., and if A. either married or cohabited with a Roman Catholic or if he died without a lawful heir, then the testator devised the property to B. A. cohabited with a Roman Catholic and also died without a lawful heir. More than twenty years after the time when A. began to cohabit with the Roman Catholic, but a few months only after his death, B. brought ejectment against the devisee of A. It was held under the 20th section of 3 & 4 Wm. IV. c. 27 that the statute ran against B. from the happening of the first event, and that he could not recover. (1) 15 Ir. C. L. R. 277, 292. (2) 2 Ir. R. C. L. 395. But see Astley v. Earl of Essex, L. R. 18 Eq. 290, and post, Ch. VI. p. 338. CHAPTER VI. FORFEITURES AND BREACHES OF CONDITIONS. (Fifth Branch of 3rd section and 4th section of 3 & 4 Wm. IV. c. 27.) CH. VI. THE fifth branch of the 3rd section and the 4th section PART V. of 3 & 4 Wm. IV. c. 27 relate to rights acquired by forfeitures and breaches of conditions, and must be considered together. They are as follows: branch section "And when the person claiming such land or rent or Fifth the person through whom he claims shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken." "Provided always, that when any right to make an entry or distress or to bring an action to recover any land or rent by reason of any forfeiture or breach of condition shall have first accrued in respect of any estate or interest in reversion or remainder, and the land or rent shall not have been recovered by virtue of such right, the right to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued in respect of such estate or interest at the time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened." These provisions, as was remarked arguendo in Doe d. Hall v. Moulsdale (1), clearly apply to every forfeiture or (1) 16 M. & W. 696; and see Whitton v. Peacock, 3 M. & K- 325. of 3 & 4 Wm. IV. c. 27 4th section Wm. IV. of 3 & 4 c. 27. |