PART V. applies at all to acknowledgments in actions or suits governed by 3 & 4 Wm. IV. c. 27, s. 42. CII. XXII. In actions and suits to recover the land within 37 & 38 Vict. c. 57, s. 1, and 3 & 4 Wm. IV. c. 27, s. 24, an acknowledgment by a mortgagor affects only the lands in his possession, but by virtue of 7 Wm. IV. and 1 Vict. c. 28, part payment, or payment of interest by a person entitled to the equity of redemption of part of the land mortgaged, binds the persons entitled to the equity of redemption in all the rest of the land included in the mortgage (1). The benefit of the Act 7 Wm. IV. and 1 Vict. c. 28, is confined to mortgagees of land as defined by the 1st section of 3 & 4 Wm. IV. c. 27, and does not, therefore, extend to mortgagees of rent-charge (2). And the part payment of principal, or payment of interest, has, under the statute 7 Wm. IV. and 1 Vict. c. 28, the effect of keeping alive the right under the mortgage, not only as against the mortgagor who makes the payment, but also as against a person who has possession of the land adversely both to mortgagor and mortgagee. It seems doubtful to what extent such payment can prejudice the title of a person who, but for it, would have gained a complete title to the land under the statute; that is to say, whether the mortgage is only kept alive as an encumbrance on such person's estate, or whether the mortgagee has a right to oust such a person entirely from that estate, and so not only to preserve the mortgagee's title, but also to revest the mortgagor's. It is, however, clear that payment of principal or interest, to have any effect at all under the statute of 7 Wm. IV. and 1 Vict. c. 28, must be made before any person has gained a complete title, as against both the mortgagor and mortgagee by possession, under 3 & 4 Wm. IV. c. 27 (3). Secondly, as to disabilities. PART V. CH. XXII. abilities. In actions governed by 3 & 4 Wm. IV. c. 42, s. 3, allowance is made for infancy, coverture, unsoundness of Dismind, and absence of the defendant beyond seas, and time does not run till the disability ceases (1). Coverture, since the Married Women's Property Act, 1882, is no longer a disability. In actions governed by 37 & 38 Vict. c. 57, s. 8, no actual provision is made for any disabilities, but as time does not begin to run until there is some person capable of giving a discharge, provision is practically made for infancy and unsoundness of mind, but none is made for the absence of the defendant beyond seas, and none for coverture. So far as an allowance is made, twelve years is given from the cesser of the disability (2). In actions governed by 3 & 4 Wm. IV. c. 27, s. 42, no provision is made for disabilities at all (3). In actions for the recovery of land, governed by 37 & 38 Vict. c. 57, s. 1, and 3 & 4 Wm. IV. c. 27, s. 24, allowance is made for infancy, coverture, and unsoundness of mind. Coverture is now probably only a disability, if at all, in the cases of persons married before January 1, 1883. The time allowed is six years from the cesser of the disability, or the death of the party under it, notwithstanding twelve years may have expired from the accrual of the cause of action, but in no case is more than thirty years allowed from that time (4). redeem. A mortgagor's right to redeem is limited by sect. 7 of Right to 37 & 38 Vict. c. 57, to twelve years from the time when the mortgagee went into possession, or from the last written acknowledgment of the mortgagor's title signed by the mortgagee. But it is expressly provided by the section that, when there are several mortgagees, or several (1) See ante, Part II. Ch. III. p. 149. CH. XXII. PART V. persons entitled under one mortgage, such an acknowledgment is only to operate against the estate or interest of the person making it, or any estate or interest to take effect in defeasance of such estate or interest. This section probably includes the case where a mortgagee has not taken possession of the land, or received its immediate proceeds, but has received the rents from a tenant in possession (1). In all cases where a mortgagee has taken possession or received the profits of land within the meaning of the 7th section of 37 & 38 Vict. c. 57, the mortgagor's title will be extinguished by sect. 34 of 3 & 4 Wm. IV. c. 27, at the end of twelve years, unless some acknowledgment be given in the meantime so as to keep the title alive. And if the title be once extinguished, no acknowledgment subsequently given can revive it (2). No allowance is made under this section for any disability on the part of the mortgagor (3). (1) See ante, Part V. Ch. XXI. p. 464. (2) See ante, p. 466. (3) See ante, p. 469. CHAPTER XXIII. PROPERTY OF SPIRITUAL AND ELEEMOSYNARY CORPORA TIONS SOLE (3 & 4 wм. IV. c. 27, s. 29). THE 29th section of the Act 3 & 4 Wm. IV. c. 27 pro- PART V. vides as follows: CH. XXIII. Wm. IV. "It shall be lawful for any archbishop, bishop, dean, 3 & 4 prebendary, parson, vicar, master of hospital, or other spiritual or eleemosynary corporation sole to make an entry or distress, or to bring an action or suit to recover any land or rent within such period as hereinafter is mentioned next after the time at which the right of such corporation sole, or of his predecessor, to make such entry or distress, or bring such action or suit, shall first have accrued; that is to say, the period during which two persons in succession shall have held the office or benefice in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the times of such two incumbencies, and such term of six years taken together, shall amount to the full period of sixty years; and if such times taken together shall not amount to the full period of sixty years, then during such further number of years, in addition to such six years as will with the time of the holding of such two persons, and such six years, make up the full period of sixty years; and no such entry, distress, action or suit, shall be made or brought at any time beyond the determination of such period." PART V. CH. XXIII. Tithes. Tithe rentcharge. This section only applies to spiritual and eleemosynary corporations sole, and excepts these bodies from the operation of the 1st section of 37 & 38 Vict. c. 57 (formerly the 2nd section of 3 & 4 Wm. IV. c. 27), and provides in their case a more extended period of limitation. Tithes belonging to such bodies are excluded by the 1st section of 3 & 4 Wm. IV. c. 27, from the meaning of the word "land" throughout that Act and the amending Act 37 & 38 Vict. c. 57, and are therefore not affected by any of the provisions of either Act. Tithe rent-charge in general, as pointed out in a former chapter (1), is included in the word "rent" throughout the Act 3 & 4 Wm. IV. c. 27 (2), and, when in the hands of any spiritual or eleemosynary corporation sole, comes within the protection of the 29th section of that Act (3). The money payments in lieu of tithes made after the rates settled by 37 Hen. VIII. c. 12, in respect of houses in the City of London, are rent within the meaning of the Act, and when in the hands of spiritual or eleemosynary corporations sole would fall within the protection of the 29th section (4). The amount of arrears of tithe rent-charge recoverable is limited by the Tithe Commutation Act (5) to two years' arrears, and that provision would exempt all tithe rentcharges from the operation of the 42nd section of 3 & 4 Wm. IV. c. 27. By the Tithe Act, 1891 (6), which makes tithe rent-charge payable by the owner instead of the occupier, a sum on account of tithe rent-charge shall not be recoverable under the Act unless proceedings for such recovery have been commenced before the ex (1) Part V. Ch. II. p. 283. (2) Irish Land Commission v. Grant, 10 App. Cas. 14. (3) See per Lord Selborne, L.C., Irish Land Commission v. Grant, 10 App. Cas. at p. 29. (4) Payne v. Esdaile, 13 App. Cas. 613. |