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3 & 4 Will. 4, Incorporated Society v. Richards, 1 D. & War. 290 ; Sugd. R. P. Stat. 67). c. 27, 8. 14.

A party in possession adversely of land, being applied to by the party claiming title to it to pay rent, and offered a lease of it, wrote as follows: “Although if matters were contested, I am of opinion that I should establish a legal right to the premises, yet, under all circumstances, I have made up my mind to accede to the proposal you made of paying a moderate rent on an agreement for a term of twenty-one years : the bargain subsequently went off, and no rent was paid or lease executed. Held, that this letter was not an acknowledgment of title within this section, because there was no final bargain (Doe v. Edmonds, 6 M. & W. 295; see Morrell v. Frith, 3 M. & W. 402).

A deed which purported to bear date more than twenty years before action, but which was in fact executed by the defendant within twenty years, and which contained a recital of the plaintiff's title, was a sufficient acknowledgment (Jayne v. Hughes, 10 Exch. 430). A correspondence by a party in possession of property with the solicitor of a society, by which he merely professed to hold the estates until an account on the foot of charges, to which he was entitled, should be closed, and offered to refer to arbitration all questions touching such account, as the only matter in dispute, was a sufficient acknowledgment (Incorporated Society v. Richards, 1 D. & War. 258). A letter was held to amount to a sufficient acknowledgment in Fursden v. Clegg (10 M. & W. 572). Where two parties are dealing with each other, the one claiming a right to the property, and the other an incumbrance on it, the incumbrancer cannot be heard to say that an acknowledgment, contained in a correspondence between them, is not binding on him, because there might be an infirmity in the title acknowledged, in case some third party were to make a claim (Incorporated Society v. Richards, 1 D. & War. 258). The acknowledgment must be in writing, and it may be doubted whether parol evidence of the acknowledgment will be excluded (Haydon v. Williams, 7 Bing. 168). An acknowledgment in an answer sworn to a bill in Chancery filed by the plaintiff in reference to the same property was sufficient (Goode v. Job, 28 L. J. Q. B. 1).

Where a statutory title has accrued by the expiration of the requisite period, it cannot be defeated by a subsequent acknowledgment (Sanders v.

Sanders, 19 Ch. Div. 373). When time The moment after an acknowledgment of title, within the meaning of runs after an the 14th section, is made, the time begins to run against the person to acknowledg- whom it is made (Burroughs v. M.Creight, 1 J. & L. 304; Scott v. Nixon, ment.

3 D. & War. 404). See, however, Darb. & Bos. Stat. Lim. 290.

Where pos.

not be barred

Time of Limitation enlarged.

Possession not adverse at passing of Act.

15. Provided also, and be it further enacted, that when no session is not such acknowledgment as aforesaid shall have been given before time of pass- the passing of this act, and the possession or receipt of the proing the act, fits of the land, or the receipt of the rent, shall not at the time the right shall of the passing of this act have been adverse to the right or title until the end of the person claiming to be entitled thereto, then such person, of five years

or the person claiming through him, may, notwithstanding the afterwards.

period of twenty years, herein before limited, shall have expired, make an entry or distress, or bring an action to recover such land or interest (d), at any time within five years next after the passing of this act (e).

(d) The word "interest,” which is in the parliament roll, appears to be

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a mistake for "rent" (Per Lord Denman, C. J., Doe y. Angell, 9 Q. B. 3 & 4 Will. 4, 360).

c. 27, s. 15. (e) For cases on this section, see Holmes v. Newlands, 11 Ad. & Ell. 44; Culley v. Doe, 11 Ad. & Ell. 1008; O'Sullivan v. M.Sweeny, 2 Ir. L. R. 95, 96; Doe v. Williams, 5 Ad. & Ell. 296; Scott v. Nixon, 3 D. & War, 388; Incorporated Society v. Richards, 1 D. & War. 289; Doe v. Thompson, 5 Ad. & Ell. 532; Ex p. Hassell, 3 Y. & Coll. 617.

3. Savings in Case of Disabilities. 16. Provided always, and be it further enacted, that if at the Persons under time at which the right of any person to make an entry or dis- disability of tress, or bring an action to recover any land or rent, shall have lunacy, coverfirst accrued as aforesaid (1), such person shall have been ture, or beunder any of the disabilities hereinafter mentioned, (that is to ,

and their resay,) infancy (9), coverture, idiotcy, lunacy (1), unsoundness of presentatives, mind, or absence beyond seas, then such person, or the person to be allowed claiming through him, may, notwithstanding the period of ten years from twenty years hereinbefore limited shall have expired, make an nation of their entry or distress, or bring an action to recover such land or disability or

death. rent, at any time within ten years next after the time at which the person to whom such right shall have first accrued as aforesaid shall have ceased to be under any such disability, or shall have died (which shall have first happened) (i).

In all cases since 1st January, 1879, the question of disabilities depends 37 & 38 Vict. on 37 & 38 Vict. c. 57, sects. 3 and 4, which have substituted the period of c. 57. six years for the ten years mentioned in sect. 16 (above), and have abolished the disability arising from absence beyond seas. See the sections given in full; p. 196, post. With regard to married women the disability of coverture has been abolished in the case of actions falling within M. W. P. Act, 1882, sect. 1, sub-s. 2 (See Lowe v. Fox, 15 Q. B. Div. 667; Weldon v. Neal, 51 L. T. 289; cases decided under 21 Jac. 1, c. 16, s. 7). The following note has reference to 3 & 4 Will. 4, c. 27, s. 16.

(f) See sections 2 to 14, ante, pp. 112–138. This section was held not to apply to a mortgagor redeeming, such an action not being an action to recover land (Kinsman v. Rouse, 17 Ch. D. 101; see Forster v. Patterson, 17 Ch. D. 132).

(9) Where an infant's property has been in the possession of the parent Disability of of the infant, such parent has been treated as a bailiff for the infant, and infancy. time has not run (Thomas v. Thomas, 2 K. & J. 79; Wall v. Stanwick, 34 Possession by Ch. D. 763; Hobbs v. Wade, 36 Ch. D. 553). Similarly where an uncle father of son's has been in possession (Pelly v. Bascombé, 4 Giff. 390; on appeal, 13 estate. W. R. 306).

(h) See Fulton v. Creagh, 3 J. & Lat. 329; 3 Y. & Coll. 620. (i) It was held under 3 & 4 Will. 4, c. 27, s. 16, that when the person to Successive whom the right to bring an action for the recovery of land accrued was disabilities in under a disability, and before the removal of that disability the same the same person fell under another disability, his right to bring an action was pre- person. served until ten years after the removal of the latter disability (Borrows v. Ellison, L. R. 6° Ex. 128; seo Supple v. Raymond, 1 Hayes, Ir. Rep. 6; 2 Prest. Abstr. 340; Blansh. Lim. 21, 22).

But where time had once begun to run no subsequent disability, on the part of the person to whom the right first accrued, or of any one claiming under him, would stop the running of time (See Doe v. Jones, 4 T. R. 310; Sturt v. Mellish, 2 Atk. 610_614; Str. 556; 1 Wils. 134; Cotterell v. Dutton, 4 Taunt. 826; Doe v. Jesson, 6 East, 80; decided under

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3 & 4 Will. 4, 21 Jac. 1, c. 16, s. 2, the wording of which was very similar; and see c. 27, s. 16. Goodall v. Skerratt, 3 Drew. 216; Murray v. Watkin, 62 L. T. 796, post,

p. 196). It was also decided under 21 Jac. 1, c. 16, s. 2, that where an estate descended to parceners, one of whom was under a disability, the disability of the one did not preserve the title of the other (Doe v. Rowlston, 2 Taunt. 441).

For the bearing of this section upon the construction of the first branch of sect. 3, see Owen v. De Beauvoir (16 M. & W. 567); De Beauvoir v. Owen

(5 Exch. 166). Presumption Where a person has not been heard of for many years, the presumption of death of the duration of life ceases at the end of seven years, a period which has where person been fixed from analogy to the statute of bigamy (1 Jac. 1, c. 11, s. 2; has not been

see now 24 & 25 Vict. c. 100, s. 57), and the statute concerning leases heard of for

determinable on lives (19 Car. 2, c. 6)* Thus, upon a plea of coverture, seven years.

where the husband had gone abroad twelve years before, the defendant was called upon to prove that he was alive within the last seven years

(Hopewell v. De Pinna, 2 Campb. 113). · Where a tenant for life had not Slabulary Bento been heard of for fourteen years by a person residing on the estate, it was

send a held to be presumptive evidence of his death (Doe v. Deakin, 4 B. & Ald. Weitere

433; see 2 1d. 386). It was held, that where no account could be given of a person within the exception of the statute 21 Jac. 1, c. 16, s. 2, he would be presumed to be dead at the expiration of seven years from the last account of him (Doe v. Jesson, 6 East, 84). It is now settled that if a person has not been heard of for seven years, there is a presumption of law that he is dead (Re Phene, 5 Ch. 139; Nepean v. Doe, 2 M. & W. 894). The presumption of death, however, does not arise where the other circumstances of the case render it probable that he would not be heard of though alive (Watson v. England, 14 Sim. 28; Bowden v. Henderson, 2 Sm. & G. 360 ; M.Mahon v. M'Elroy, I. R. 5 Eq. 1). Further, in order to raise the presumption, there must have been an inquiry and search made for the man amongst those who if he were alive would be likely to hear of him (Per Lord Blackburn, Prudential Co. v. Edmonds, L. R. 2 H. L.

509; Doe v. Andrew, 16 Q. B. 751; Re Creed, 1 Drew. 235). No presump

But although, if a person has not been heard of for seven years, tion as to there is a presumption of law that he is dead; at what time within time of death. that period he died is not a matter of presumption but of evidence.

And the onus of proving that the person survived any particular period within the seven years lies upon those who claim a right, to the establishment of which that fact is essential (Re Phene, 5 Ch. 139, where the cases are collected; see Nepean v. Doe, 2 M. & W. 894; Doe v. Nepean, 5 B. & Ad. 86; R. v. Harbourne, 2 Ad. & Ell, 540; R. v. Twyning, 2 B. & Ald. 386). Where, accordingly, a legatee has not been heard of for seven years, his death will be presumed, and the onus of proving that he survived the testator lies upon those who claim under him. In the absence of such proof the legacy will be paid to the residuary legatee, or the next of kin of the testator (Re Lewes, 6 Ch. 356; Re Walker, 7 Ch. 120; see Re Green, 1 Eq. 288, a case of next of kin; and Rhodes v. Rhodes, 36 Ch. D. 586, where the court remained in doubt whether a fund should be paid to the next of kin ascertained at the beginning or the next of kin

ascertained at the end of the period). Effect of After seven years, having got the fact of death, you have a right to circum- look back and inquire into all the circumstances and ascertain when the stances. man died (Hickman v. Upsall, 4 Ch. Div. 149; Re Beasney, 7 Eq. 498;

and see the judgment of Lush, J., in R. v. Lumley, L. R. 1 0. C. 196; R. v. Willshire, 6 Q. B. D. 366).

In Sillick v. Booth (1 Y. & Coll. C. C. 117), the court concluded that a party died at a particular time within the seven years after he had been last heard of, the particular time being the hurricane months, and the party having sailed from Demerara before the expiration of such hurricane months (See also Webster v. Birchmore, 13 Ves. 362). The court concluded that a young sailor, who was last seen in the summer of 1840 going to Portsmouth to embark, survived his grandmother, who died in March, 1841 (Re Tindall, 30 Beav. 151). A son, first tenant in tail in remainder, 3 & 4 Will. 4, left this country on the 11th April, 1858, and was never afterwards heard c. 27, s. 16. of. His father, tenant for life, died on the 30th May, 1858. The court concluded, in 1872, that the son survived the father (Pennefather v. Pennefather, I. R. 6 Eq. 171; see Lakin v. Lakin, 34 Beav. 443). Where the husband of a woman had, seven years before her death, left this country for America, and had not been heard of since three days after his arrival there, although he had been advertised for in that country, the husband's death was presumed, and probate was granted of his wife's will as if she had died a widow (Re How, 1 Sw. & T. 53). As to presuming the death of parties who embarked in vessels lost at sea or not afterwards heard of, see Re Norris (1 Sw. & T. 6); Re Main (1 Sw. & T. 11); Re Smyth (28 L. J. Prob. 1).

Where a testator died'in 1829, leaving a will in favour of his children, one of whom went abroad in 1809, and had not been heard of since 1815; both before and after the testator's death endeavours were made, by inquiries and advertisements, to ascertain whether such child were living or dead, but without success: it was held, that he must be presumed to have died before the date of the will (Rust v. Baker, 8 Sim. 443). The certificate of a master, stating that a legatee had been abroad twentyeight years, and not been heard of for twenty-seven years, and his opinion that he died in the lifetime of the testator, was the foundation of a decree (Lee v. Willock, 6 Ves. 606; Reg. lib. 1791, fol. 315; see also 13 Ves. 362).

Where a trust was declared by deed in favour of A., A., although he had not been heard of for five years before the date of the deed, was presumed to have been then in existence (Re Corbishley, 14 Ch. D. 846).

In some doubtful cases the court has handed over the property on Security to security to refund being given (Dowling v. Winfield, 14 Sim. 277; Čuth- refund. bert v. Purrier, 2 Phil. 199; Re Mileham, 15 Beav. 507).

The testator and his wife were shipwrecked and drowned at sea, one Two persong wave sweeping both of them together into the water, after which they in same wreck. were never seen again. It was laid down by the House of Lords that by the law of England the question of survivorship, in cases of the above description, is matter of evidence, and not of positive regulation and enactment (varying according to the ages and sex of the persons dying in the same shipwreck), as it is in the French Code, and in the absence of evidence there is no conclusion of law on the subject (Wing v. Angrave, 8 H. L. C. 183; see, further, Gen. Stanwir's case, Fearne's Post. Works, 38; R. v. D. Hay, 1 Wm. Bl. 640; Swinburn, part 7, s. 33; Wright v. Netherwood, 2 Salk. 593, n.; Hitchcock v. Beardsley, West's Rep. t. Hardwicke, 445; Bradshaw v. Toulmin, 2 Dick. 633; Mason v. Mason, 1 Mer. 308; Taylor v. Diplock, 2 Phill. Ecc. C. 261; Re Selwyn, 3 Hagg. Ecc. R. 741; Colvin v. The King's Proctor, 1 Hagg. Ecc. 92; Re Alston, 1892, P. 142).

As to reduction into possession in cases of this kind, see Scrutton v. Pattillo (23 W. R. 379); Wollaston v. Berkeley (24 W. R. 360).

In establishing a title upon a pedigree, it is sufficient to show that the person has not been heard of for many years, to put the opposite party upon proof that he still exists (Rowe v. Husland, 1 W. Bl. 404; see Fitz. N. B. 196, A. L.) Proof by one of a family, that many years before a younger brother of the person last seised had gone abroad, and that the repute of the family was that he had died there, and that the witness had never heard in the family of his having been married, is primâ facie evidence of his death without issue to entitle the next claimant by descent to recover in ejectment (Doe v. Griffin, 15 East, 293).

Where a man died long ago and there is nothing to show whether he Presumption died with issue or without issue, there is no presumption either way of death with(Greaves v. Greenwood, 2 Exch. Div. 295). The court concluded that a out issue, man had died without issue in Rawlinson'v. Miller (1 Ch. D. 52; see Re Pople, 40 Ch. D. 589).

3 & 4 Will. 4, c. 27, 8. 17.

Extreme Period of Limitation fixed.

Forty Years. But no action, 17. Provided nevertheless, and be it further enacted, that no &c. shall be

entry, distress or action shall be made or brought by any perbrought beyond forty son who, at the time at which his right to make an entry or years after the distress, or to bring an action to recover any land or rent shall right of action have first accrued, shall be under any of the disabilities herein.

before mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such forty years, or although the term of 'ten years, from the time at which he shall have ceased to be under any such disability, or have died, shall not have ex

pired (k). 37 & 38 Vict. (k) In all cases since 1st January, 1879, reference must be had to 37 & c. 57.

38 Vict. c. 57, s. 5 (given at length post, p. 197), which has prescribed thirty years as the utmost allowance for disabilities.

Before 3 & 4 Will. 4, c. 27, the period during which a vendor of land on an open contract was bound to show title was sixty years, and sect. 17 of the act did not alter this rule (Cooper v. Emery, 1 Ph. 388; Moulton v. Edmonds, 1 D. F. & J. 250). Now by 37 & 38 Vict. c. 78, s. 1, the period

is forty years. Where

A feme sole seised in fee married, and she and her husband ceased to be husband and in the possession or enjoyment of the land. They both died at times wife abandon which were not shown to be within forty years from their ceasing to оссиру. possession of The wife's heir-at-law brought ejectment against the person in possession wife's

pro- within twenty years of the husband's death, and within five years of the perty.

passing of 3 & 4 Will. 4, c. 27, but more than forty years after the husband and wife ceased to occupy: it was held, that the heir-at-law was barred by the 17th section of the statute, though it did not appear when or how

the defendant came into possession, and though proof was offered that the Where wife had levied no fine (Doe v. Bramston, 3 Ad. & Ell. 63). There is a husband pur- material distinction between the case of a husband and wife making the ports to con- possession derelict as was the case in Doe v. Bramston, and the case where vey wife's

the husband and wife are seised in fee in right of the wife, and the husband, property by a by a conveyance which does not bind the wife, purports to convey the fee. conveyance Because the effect at law is, that such conveyance merely passes to the which does not bind her.

grantee of the husband that estate which he had and might have held during the continuance of the coverture. In such case the right of the wife comes within the fourth description of interest in the 3rd section of the stat. 3 & 4 Will. 4, c. 27. If husband and wife, being seised in fee in right of the wife, convey to a purchaser by deed without fine, the wife, if she survives, and if not her heir, may, on the husband's death, recover the land, notwithstanding the purchaser may have been in possession for more than forty years (Jumpisen v. Pitchers, 13 Sim. 327).

In 1787, a lease was made by a lunatic to his brother for lives renewable for ever.

The lessee, who was the last life in that lease, died in 1836. Various proceedings were had in the lunacy matter respecting the lease and the rent reserved thereby, the result of which was that, without recognizing the lease as a valid demise, the lessee was permitted to hold part of the lands demised, paying the entire reserved rent. From 1836 to 1842 the profits were received by the heir of the lessee. In 1842 the lessor died, and the fee descended upon the heir of the lessee, who was also heir of the lessor. It was held, on a bill filed by a judgment creditor of the

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