CHAPTER XVII. ABOLITION OF REAL ACTIONS (3 & 4 wм. IV. c. 27, ss. 36, 37, 38, 39). PART V. CH. XVII. Real actions statute. before the IV. c. 27, s 36. BEFORE the statute 3 & 4 Wm. IV. c. 27 a person entitled to an estate in land might be deprived of his right of entry by a variety of circumstances beyond his own control, and in such cases he might be put to his real action, the right to which might survive much longer than the right to bring ejectment. The object of the statute 3 & 4 Wm. IV. c. 27 being to provide one period of limitation for the recovery of land in all cases, 3 & 4 Wm. a section (sect. 36) was inserted for the abolition of real actions, and, lest this should leave some parties entitled without any remedy, provision is made (sect. 39) that no right of entry shall be taken away by any of the means other than lapse of time by which such a right might have been destroyed under the former law. The effect of the 36th section of 3 & 4 Wm. IV. c. 27 was absolutely to abolish as from the 31st day of December 1834, subject to the savings of sects. 37 and 38, every real and mixed action except writs of right of dower, of dower unde nihil habet, quare impedit and ejectment. Dower, writ of right of dower, and quare impedit were abolished as real actions by sect. 26 of the Common Law Procedure Act, 1860 (1). The 26th section of the latter Act was repealed by the Statute Law Revision and Civil Procedure Repeal Act, 1883 (2), but that repeal is not to revive (1) 23 & 24 Vict. c. 126. CH. XVII. PART V. any "usage, practice, procedure, or other matter or thing not existing or in force at the passing of this Act." The Statute Law Revision Act, 1874 (37 & 38 Vict. c. 35) repealed the exception in 3 & 4 Wm. IV. c. 27, s. 36 as to writ of right of dower, of dower unde nihil habet, and quare impedit; after the Common Law Procedure Act, 1860, ejectment was the only one of the real or mixed actions that remained. The Statute Law Revision Act, 1874, also repealed the saving sections 37 and 38 of 3 & 4 Wm. IV. c. 27, which were only provisoes to sect. 36 and of temporary application. Sect. 36 of 3 & 4 Wm. IV. c. 27 is itself repealed by the Civil Procedure Acts Repeal Act, 1879 (42 & 43 Vict. c. 59), but that Act expressly provides (sect. 4, subs. 4) that the repeal is not to revive or restore any "usage, practice, procedure, or other matter or thing not existing or in force at the passing of this Act." Some of the peculiarities of the old action of ejectment still remain in existence, although there is no longer an action of ejectment; but since the Judicature Act, 1873, such an action is now called "an action for the recovery of land" (1). 39th sec The 39th section of 3 & 4 Wm. IV. c. 27 is still in force, and, as amended by 53 & 54 Vict. c. 51, is as follows: "No descent cast, discontinuance, or warranty which tion of 3 & may happen or be made shall toll or defeat any right of entry or action for the recovery of land" (2). 4 Wm. IV. c. 27. (1) R. S. C., 1883, O. XVIII. г. 2; R. S. C. Ir. 1891, O. xvii. r. 2. Gledhill v. Hunter, 14 Ch. D. 492. (2) See note to Watkins on Descents, 4th ed. p. 3. Co. Lit. 244a. CHAPTER XVIII. LIMITATIONS OF EQUITABLE RIGHTS TO REAL PROPERTY (3 & 4 WM. IV. c. 27, ss. 24, 25). CH. XVIII THE first twenty-three sections of 3 & 4 Wm. IV. PART V. c. 27 only limited the time for making an entry or distress or bringing an action at law to recover any land or rent, and did not apply to any remedies in equity. The amending Act (37 & 38 Vict. c. 57) applies to proceedings in equity as well as at law. Special remedies as to proceedings in equity were provided for by the 24th and three following sections of the Act 3 & 4 Wm. IV. c. 27. The 24th and 25th sections of 3 & 4 Wm. IV. c. 27, which must be considered in reference to one another, are as follows: 66 'No person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which by virtue of the provisions herein before 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." "Provided always, and be it further enacted that when 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 any Sect. 24 of 3 & 4 Wm. Sect. 25 of 3 & 4 Wm. IV. c. 27. PART V. conveyed to a purchaser for a valuable consideration, and CH. XVIII. shall then be deemed to have accrued only as against such purchaser and any person claiming through him.” The effect of the 24th section of 3 & 4 Wm. IV. c. 27 is, so far as the limitation of time is concerned, to place (subject to the exceptions contained in the 25th and 26th sections hereinafter mentioned) every remedy in equity for the recovery of land or rent in the same position as if it were a remedy at law, and this not only as to the time of limitation, but as to the time at which the right to sue is to be deemed to have accrued, and as to all exceptions on the ground of disability or otherwise (1). The 24th section deals with equitable rights other than the rights of cestuis que trustent arising under express trusts. The 25th section deals with express trusts as against a trustee or those claiming under him (2). It should be noticed that all the provisions of 37 & 38 Vict. c. 57 apply to "suits" in equity as well as to "actions" at law. We have seen (3) that before the passing of the Act 3 & 4 Wm. IV. c. 27 Courts of Equity acted on the same principle and followed the Statutes of Limitation then in force. Thus the provisions of 21 Jac. I. c. 16 as to actions of ejectment were applied to redemption suits (4), while on the other hand there was no limitation in equity to the recovery of rent-charges, because none of the old Statutes of Limitation applied to any remedy at Law for their recovery (5). Redemption actions are now specially provided for by the 28th section of 3 & 4 Wm. IV. c. 27 (6). With this exception it may be taken (1) See Hicks v. Sallitt, 3 De G. M. & G. 782; Thompson v. Simpson, 1 Dru. & War. 459, 489; Attorney-General v. Magdalen College, 6 H. L. 189, 215. (2) Attorney-General v. Flint, 4 Hare, 155. (3) Part IV. Ch. I. p. 237. (4) Belch v. Harvey, Sugd. Vendors, 10th ed. App. 34; 3 P. Wms. 287; Bonny v. Ridgard, cited Beckford v. Wade, 17 Ves. 97; White v. Ewer, 2 Vent. 310; Aggas v. Pickerell, 3 Atk. 225. (5) Stackhouse v. Barnston, 10 Ves. 453, 467. (6) See post, Part V. Ch. XXI. that every suit in equity, the nature of which is in any way to recover land or rent, is within the 24th section of 3 & 4 Wm. IV. c. 27 as well as within the express provisions of 37 & 38 Vict. c. 57. PART V. CH. XVIII. waste. The 24th section of 3 & 4 Wm. IV. c. 27 has been Suits held to apply to a suit by a remainderman in tail against the personal representative of a tenant for life for equitable waste committed by the tenant for life, on the ground that such waste is in effect an abstraction of part of the inheritance, so that the period of limitation was twenty (now twelve) years; and time was held to begin to run from the death of the tenant for life (1). If legal waste by felling timber be committed by a lessee for years and a tenant for life of the reversion, the remainderman's remedy is an action of trover for the conversion of the timber or an action for money had and received when the timber is sold. The remainderman's right to an account in equity is only incident to his right to an injunction; and this remedy, both at law and in equity, is barred at the end of six years from the felling of the timber (2). But there is a remedy in equity for legal waste committed by a tenant for life who is also entitled to the next estate of inheritance in remainder, because in these circumstances there is at the time of the commission of the waste nobody entitled at law to maintain any action for it, and if the life estate and estate in remainder of the tenant for life determine together by his death without issue, there is an immediate claim against his executors on the part of all the persons entitled to the successive limitations of the estate, and at the end of six years from such death every remainderman is barred of his remedy, although his estate may not have fallen into possession within that (1) Duke of Leeds v. Amherst, 2 Phillips, 117; 14 Sim. 357. (2) Higginbotham v. Hawkins, L. R. 7 Ch. 676; 41 L. J. Ch. 828. Denys v. Shuckburgh, 4 Y. & C. Exch. 42; Seagram v. Knight, L. R. 3 Eq. 398; 2 Ch. 628; Simpson v. Simpson, 3 L. R. Ir. 308. |