CHAPTER XVI. ESTATES TAIL (3 & 4 WM. IV. c. 27, ss. 21 & 22, AND 37 & 38 VICT. c. 57, s. 6). CH. XVI. BEFORE the passing of the Act 3 & 4 Wm. IV. c. 27, the PART V. periods within which tenants in tail and remaindermen after estates tail could enforce their rights were regulated by 21 Jac. I. c. 16, s. 1, which enacted as follows: "All writs of formedon in descender, formedon in 21 Jac. I. c. 16, s. 1. remainder, and formedon in reverter, of any manors, lands, tenements, or other hereditaments whatsoever, at any time hereafter to be sued or brought by occasion or means of any title or cause hereafter happening, shall be sued and taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years; and no person or persons that now hath any right or title of entry into any manors, lands, tenements, or hereditaments now held from him or them shall thereinto enter but within twenty years next after the end of this present session of Parliament, or within twenty years next after any other title of entry accrued; and no person or persons shall at any time hereafter make any entry into any lands, tenements, or hereditaments, but within twenty years next after his or their right or title which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs shall be utterly excluded and disabled from such entry after to be made; any former law or statute to the contrary notwithstanding." It seems that the title of the issue in tail first de PART V. CH. XVI. 21st section scended or fell within the meaning of this section upon the decease of the last tenant in tail, who had possession in right of his title as such; but when the time once began to run, it ran against all the heirs in tail claiming per formam doni, and no persons subsequently claiming under the entail, whether issue of him against whom time first began to run or not, acquired a fresh right (1). And where it was shown that a tenant in tail, who had been dead seven years, had been in possession about thirty-five years before the ejectment brought by his heir in tail, since which time the defendants, or those through whom they claimed, had been in possession, but there was no evidence to account for such possession, which might have been referable to a conveyance by the ancestor which did not discontinue the estate tail, it was held that there was no such presumption in favour of the defendants, arising from the long possession, as to throw on the lessor of the plaintiff the onus of showing that the ancestor in tail had not conveyed by fine and recovery (2). The statutes 3 & 4 Wm. IV. c. 27 and 37 & 38 Vict. c. 57 contain some important provisions relating to the rights of tenants in tail and remaindermen claiming after the determination of estates tail, and in fact give time the same effect in barring estates tail and remainders over as an assurance competent to bar them. The sections containing these provisions are the 21st and 22nd sections of 3 & 4 Wm. IV. c. 27 and the 6th section of 37 & 38 Vict. c. 57, which re-enacts the 23rd section of 3 & 4 Wm. IV. c. 27, but substitutes twelve for twenty years as the period of limitation. These sections are as follows:: "When the right of a tenant in tail of any land or Wm. IV. c. rent to make an entry or distress or to bring an action of 3 & 4 27... to recover the same shall have been barred by reason of (1) Tolson v. Kaye, 3 B. & B. 217. (2) Doe d. Smith v. Pike, 3 B. & Ad. 738. CH. XVI. the same not having been made or brought within the PART V. period herein before limited, which shall be applicable in such case, no such entry, distress, or action shall be made or brought by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred." 22nd sec tion of 3 & 4 Wm. IV. "When a tenant in tail of any land or rent entitled to recover the same shall have died before the expiration of the period hereinbefore limited, which shall be c. 27. applicable in such case for making an entry or distress, or bringing an action to recover such land or rent, no person claiming any estate, interest, or right which such tenant in tail might lawfully have barred shall make an entry or distress or bring an action to recover such land or rent, but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action." "When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar the estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in the receipt of such rent, and the same person or any other person whosoever (other than some person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail) shall continue or be in such possession or receipt for the period of twelve years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of twelve years, such 6th section of 37 & 38 Vict. c. 57. PART V. CH. XVI. Effect of 21st and 22nd sec tions of 3 & 4 Wm. IV. c. 27. assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest or right to take effect after or in defeasance of such estate tail." The 21st section of 3 & 4 Wm. IV. c. 27 applies to cases where the prescribed period has run out against a tenant in tail during his life, and provides in effect that in such a case the right of all persons whom he might have barred by any act of his own shall be barred by the effluxion of time against himself (1). The 22nd section of 3 & 4 Wm. IV. c. 27 applies to cases where the prescribed period has begun to run against a tenant in tail in his lifetime, but where he has died before the completion of the prescribed period; and in such cases the effect, as against all whom he might have barred by an act of his own, is the same as if they, whether issue in tail or remaindermen, had claimed through him as heirs. The object of these sections, so far as issue in tail alone are concerned, at any rate where the tenant in tail is a purchaser, would probably be effected by the interpretation clause of 3 & 4 Wm. IV. c. 27 alone, which enacts that "the person through whom another is said to claim shall mean any person by, through, or under or by the act of whom the person so claiming became entitled to the estate or interest claimed," as (amongst others) "issue in tail" (2). Still these sections clearly affect both issue and remaindermen. The intention and operation of these sections with regard to remaindermen was explained by Kindersley, V.-C., in Goodall v. Sherratt (3), where, owing to the failure of the issue in tail during the life of the tenant in tail, the only question was the effect of the sections on the remaindermen. Applying the expressions of the Vice-Chancellor to the issue as well as to the remaindermen, the intention and (1) See Austin v. Llewellyn, 9 Exch. 276; 23 L. J. Exch. 11. (2) See Cannon v. Rimington, 12 C. B. 1, 16; Murray v. Watkins, (3) 3 Drew, 216. 62 L. T. 796. CH. XVI. operation of these sections is to put the issue and PART VI. remaindermen, whose estates might be barred by the tenant in tail, in the same position as if they claimed under the tenant in tail. That is to say, the conduct of the tenant in tail in allowing the whole or any portion of the twelve years to run without making an entry or bringing an action does, to the extent of the period allowed to elapse, bind the issue in tail and remaindermen as if the tenant in tail had owned the fee simple. By issue must of course be meant all the issue of the first tenant in tail claiming per formam doni, and capable of inheriting under the entail, whether issue of the tenant in tail against whom time has run or begun to run or not. The 21st and 22nd sections of 3 & 4 Wm. IV. c. 27, it must be particularly observed, do not apply to cases where the tenant in tail has, by conveying away his own right, put it out of his power to make an entry or bring an action, but only to those cases where he neglects to make an entry or bring an action (1). Under the old law, if a tenant in tail executed an innocent conveyance purporting to pass the fee, and died leaving issue in tail surviving, the grantee had a base fee subject to be defeated by the entry of the issue in tail (2); and now that no assurance can have a tortious operation, every conveyance in fee by a tenant in tail, otherwise than by a deed enrolled, would seem to have the same effect. In such a case, therefore, the right of entry or action accrues to the issue in tail upon the death of the tenant in tail who executed such conveyance, and under the 21st and 22nd sections of the statute 3 & 4 Wm. IV. c. 27 time begins to run against them and all remaindermen from the date of such death. The 6th section of 37 & 38 Vict. c. 57 (which has been substituted for the 23rd section of 3 & 4 Wm. IV. c. 27) (1) Cannon v. Rimington, 12 C. B. 1, 16; Rimington v. Cannon, 12 C. B. 18, 34; Murray v. Watkins, 62 L. T. 796. (2) Woodroffe v. Doe d. Daniel, 15 M. & W. 769, 793; 2 H. L. 811, 829; Cannon v. Rimington, 12 C. B. 12, 17. Possession rolled tenant in grant by under en tail in remainder. |