c. 27, s. 17. lessee, that the latter had not acquired either the fee-simple, subject to a 3 & 4 Will. 4, perpetual rent equal to the rent reserved, or a right to a renewal, by reason of the Statute of Limitations (3 & 4 Will. 4, c. 27), length of time, or the proceedings in the lunacy matter; and that the profits received by the heir of the lessee, from 1836 to 1842, were not assets of the lessee (Fulton v. Creagh, 3 J. & Lat. 329). Successive Disabilities. allowed for a 18. Provided always, and be it further enacted, that when No further any person shall be under any of the disabilities herein before time to be mentioned at the time at which his right to make an entry or succession of distress or to bring an action to recover any land or rent shall disabilities, have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person (7). (1) In cases since 1st January, 1879, this section is to be read substitut- 37 & 38 Vict. ing the periods of twelve years and six years respectively for the periods c. 57. of twenty years and ten years mentioned in the section (37 & 38 Vict. c. 57, s. 9, post, p. 200). As to how far sect. 18 was retrospective, see Devine v. Holloway, 14 Moore, P. C. C. 290. As to successive disabilities in the same person, see note to sect. 16, ante. Beyond the Seas. 19. No part of the United Kingdom of Great Britain and Scotland, Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney Ireland, and the adjacent or Sark, nor any islands adjacent to any of them (being part of islands not to the dominions of his Majesty), shall be deemed to be beyond be deemed seas within the meaning of this act (m). (m) See sect. 16, ante, p. 141, and 19 & 20 Vict. c. 97, s. 12, post, p. 228; Ex p. Hassell, 3 Y. & Coll. 617; Battersby v. Kirk, 2 Bing. N. C. 603; Lane v. Bennett, 1 M. & W. 70; Ruckmaboye v. Mottichund, 8 Moore, P. C. C. 4. No time is now allowed for absence beyond seas (37 & 38 Vict. c. 57, s. 4, post, p. 196). beyond seas. 4. Concurrent Rights. 20. When the right of any person to make an entry or dis- When the tress, or bring an action to recover any land or rent to which right to an he have been entitled for an estate or interest in posses- possession is S. may L estate in 3 & 4 Will. 4, c. 27, s. 20. barred, the right of the same person to future estates shall also be barred. Cases on the construction sion, shall have been barred by the determination of the period herein before limited, which shall be applicable in such case, and such person shall, at any time during the said period, have been entitled to any other estate, interest, right or possibility, in reversion, remainder or otherwise, in or to the same land or rent, no entry, distress or action shall be made or brought by such person, or any person claiming through him, to recover such land or rent, in respect of such other estate, interest, right or possibility, unless in the meantime such land or rent shall have been recovered by some person entitled to an estate, interest or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession (n). (n) This section so far as applicable to future estates and interests, must be read in connection with the fourth branch of sect. 3 (ante, p. 120), of this section. and sect. 2 of 37 & 38 Vict. c. 57 (post, p. 194). This section is in derogation of the old maxim, borrowed from the civil law, "quando duo jura concurrunt in unâ persona equum est ac si essent in diversis" (4 Rep. 118; 7 Rep. 2 b, 14 b; Plowd. 368). Under the statute 21 Jac. 1, c. 16, s. 1, a party might have pursued his right of entry twenty years after it attached, although in the meantime the party might have had a different right, of which he was barred by more than twenty years' adverse enjoyment (Hunt v. Bourne, 1 Salk. 339; 2 Id. 421; 4 Br. P. C. 66). Copyhold land was surrendered, in 1798, to a husband and wife, with remainder to the heirs of the husband. In 1805, the husband absconded. In 1807, a commission of bankruptcy issued against him, and the usual assignment of his estate was made to his assignee. The wife occupied the copyhold estate until her death in 1841: it was held, that an ejectment by the assignee brought within twenty years after her death was in time; for that the husband's reversion in fee was a future estate within the meaning of 3 & 4 Will. 4, c. 27, s. 3. The court thought it clear that the husband, if he had not been bankrupt, would have been entitled to the possession during the joint lives of himself and wife, and that upon his death (which the court presumed to have taken place in 1812), the wife was entitled to possession for her life, and the heirs of the husband on the expiration of their joint lives. The court thought, supposing the twentieth section to apply, the proviso at the end of it applied also, because the wife had been in possession until her death; and this was a sufficient recovery for the purpose of that section (Doe v. Liversedge, 11 M. & W. 517). Where A. was entitled to a leasehold interest in land for lives as heir of B., and to the reversion fee as heir of C., adverse possession during the lease barred his original right of entry, and he had no new right of entry on the determination of the lease (Doe v. Moulsdale, 16 M. & W. 689). A testator devised lands to A., with a gift over to B. in case either of two events should happen. Both events having happened, it was held that sect. 20 deprived the plaintiff of the benefit of the new right of action which accrued on the happening of the second event (Clarke v. Clarke, I. R. 2 C. L. 395). Where tenant in tail is barred, re 5. Operation of the Statute in Cases of Estates Tail. 21. When the right of a tenant in tail of any land or rent to make an entry or distress, or to bring an action to recover the same, shall have been barred by reason of the same not having 3 & 4 Will. 4, been made or brought within the period herein before limited, 0.27, s. 21. which shall be applicable in such case, no such entry, distress mainderman or action shall be made or brought by any person claiming any might have estate, interest or right, which such tenant in tail might lawfully barred shall have barred (0). whom he not recover. (o) Land was devised to the father of the plaintiff in tail general. The Cases under plaintiff's father received the rents and profits from 1799 to 1807, at this section. which time he was succeeded by a person through whom the defendant claimed. Held, in an action of ejectment brought in 1853, that under this section, since the tenant in tail was barred, the issue in tail was also barred (Austin v. Llewellyn, 9 Exch. 276). An estate tail was limited to A., remainder in tail to B., remainder to C. A. dies, then B. dies within twenty years, and C. becomes entitled in possession, being at the time under disability. It was held, that under the 21st and 22nd sections of this act time commenced running against C. from the death of A., and that having commenced to run C. was not saved from its operation under 16th section by being under disability (Goodall v. Skerratt, 3 Drew. 216). The 21st section does not apply to the case where the tenant in tail has conveyed away his own right to another and put it out of his power to enter (Cannon, dem., Rimington, ten., 12 C. B. 1, 18). In this last case the estate of a tenant in tail in possession is considered as coming within this section (12 C. B. 34). But it has been said by Bramwell, B., that the sects. 21 and 22 refer only to estates in remainder and reversion, the estate of the tenant in tail which descends to his issue being provided for by sect. 2 (Alergavenny v. Brace, L. R. 7 Ex. 149, 173). See further, pp. 114, 115, ante. Where Time has commenced running against Tenant in Tail. tenant in tail man whom he 22. When a tenant in tail of any land or rent, entitled to Possession recover the same, shall have died before the expiration of the adverse to a period herein before limited, which shall be applicable in such shall run on case, for making an entry or distress, or bringing an action to against the recover such land or rent, no person claiming any estate, interest remainderor right which such tenant in tail might lawfully have barred might have shall make an entry or distress, or bring an action to recover barred. 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 (p). (p) Under 21 Jac. 1, c. 16, where an estate was limited to one in tail, with remainder to another in fee, the remainderman might, at any time within twenty years after the failue of the issue in tail, have recovered the estate (Taylor v. Horde, 1 Burr. 60). Possession under Defective Conveyance by Tenant in Tail. shall have been posses 23. When a tenant in tail of any land or rent shall have Where there made an assurance thereof, which shall not operate to bar an estate or estates to take effect after or in defeasance of his estate sion, under tail, and any person shall by virtue of such assurance, at the an assurance, by a tenant in c. 27, s. 23. tail, which shall not bar the remainders, they shall be barred at the end of twenty years after the time 3 & 4 Will. 4, 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 whatsoever (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 twenty 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 then executed, 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 twenty years such 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 (7). when the assurance, if would have barred them. 37 & 38 Vict. c. 57. Old law. Remarks of Real Property Commissioners. Cases under sect. 23. (9) From 1st January, 1879, sect. 6 of 37 & 38 Vict. c. 57, post, p. 197, has by sect. 9 of the same act been substituted for sect. 23 of 3 & 4 Will. 4, c. 27. Sect. 6 of 37 & 38 Vict. c. 57, fixes the period of limitation at twelve years, but is in other respects substantially similar to sect. 23 of 3 & 4 Will. 4, c. 27. The following note has reference to the lastmentioned section. As to the law before 3 & 4 Will. 4, c. 27, see Doe v. Pike (3 B. & Ad. 742); Woodroffe v. Doe (15 M. & W. 769; 2 H. L. C. 811); Doe v. Woodroffe (10 M. & W. 608). The proposition of the Real Property Commissioners on the subject of this section was, "That on any alienation by tenant in tail, by any assurance not operating as a complete bar to the estate tail, and all estates, rights and interests limited to take effect on the determination or in derogation of the estate tail, possession under such assurance shall have the same effect in barring the estate tail, and all estates, rights and interests limited to take effect on the determination or in derogation of the estate tail, as if such possession had been adverse to the said estate tail, or to the said estates, rights or interests" (1 Real Prop. Rep. 79, pl. 15; and see Ib. p. 46). The object of this section was to give effect to acts of a tenant in tail against remaindermen and reversioners, and to give effect to assurances, which, although they were effectual to bar the issue, were ineffectual to bar those entitled in remainder. There are prior clauses in the statute which show what the operation is as to the issue, and those clauses [qu. this clause] seem to be studiously worded so as to be confined only to the case of persons entitled after the expiration of the estate tail (Penny v. Allen, 7 D. M. & G. 426; Morgan v. Morgan, 10 Eq. 99). The section applies to cases where a tenant in tail executes a deed enrolled under 3 & 4 Will. 4, c. 74, which, for want of the consent of the protector, operates only to create a base fee, and possession is obtained under the deed (Sugd. V. & P. 483, 14th ed.) The "possession by virtue of such assurance," however, mentioned in the section, must be a possession by virtue of an assurance which turns an estate tail into a base fee. And where a conveyance comprised a base fee and also a preceding life estate, time did not commence to run in favour of the possession taken under such conveyance until the determination of the life estate (Mills v. Capel, 20 Eq. 692). As to whether the section extends to fines and recoveries previous to 3 & 4 Will. 4, c. 74, see 1 Hayes' Conv. 264, 5th ed.; Sugd. R. P. Stat. 89; and the argument in Anderson v. Anderson (30 Beav. 207). 6. Limitation of Time as to Suits in Equity. Time of Limitation fixed with reference to the Legal Limitation. 3 & 4 Will. 4, c. 27, s. 24. 24. No person claiming any land or rent in equity shall No suit in bring any suit to recover the same but within the period during equity to be brought after which, by virtue of the provisions herein before contained, he the time when might have made an entry or distress, or brought an action to the plaintiff, recover the same respectively, if he had been entitled at law if entitled at law, might to such estate, interest or right in or to the same as he shall have brought claim therein in equity (»). () Since 1st January, 1879, the act 37 & 38 Vict. c. 57, post, p. 194, has prescribed fresh periods of limitation, which, by the express terms of the act, were extended to "suits." Prior to 3 & 4 Will. 4, c. 27, courts of equity had acted in obedience to the Statutes of Limitation in the case of legal demands, and by analogy to the rules laid down by those statutes in other cases (Hovenden v. Annesley, 2 Sch. & Lef. 629; Smith v. Clay, 3 Bro. C. C. 639, n.; Cholmondeley v. Clinton, 2 Jac. & W. 156). The act 3 & 4 Will. 4, c. 27, was intended to put an end to the discretion of courts of equity where they had acted by analogy to the time limited at law (Berrington v. Evans, 1 Y. & C. 439). But sect. 24 only barred equitable rights so far as they would have been barred if legal (Archbold v. Scully, 9 H. L. C. 360). Independently of statute, time is a bar in equity to stale demands where there has been improper delay (Harcourt v. White, 28 Beav. 303; Forster v. Thompson, 4 Dr. & War. 318; Coppin v. Gray, 1 Y. & C. C. C. 205; Blair v. Ormond, 1 De G. & Sm. 428). As to the proceedings under the old practice in equity sufficient to prevent the operation of the statute, see Coppin v. Gray (sup.); Purcell v. Blennerhassett (3 J. & Lat. 24); and as to amended bills, see Byron v. Cooper (11 Cl. & Fin. 556); Plowden v. Thorpe (7 Cl. & Fin. 164); Blair v. Ormond (1 De G. & Sm. 428); A. G. v. Hall (11 Price, 760). an action. How far courts of equity bound by Statutes of Limitation. The statutory rule, 3 & 4 Will. 4, c. 27, ss. 2, 3, 4, 5, which gave to a Equitable remainderman twenty years from the time when his title accrues in pos- waste. session, for bringing an action or suit for the property, applied to a claim for compensation for equitable waste (Leeds v. Amherst, 2 Phill. 117; Morris v. Morris, 4 Jur. N. S. 964; 6 W. R. 427). As to legal waste, see Legal waste. Seagram v. Knight (2 Ch. 628); Higginbotham v. Hawkins (7 Ch. 676); Birch Wolfe v. Birch (9 Eq. 683). A foreclosure action is an action for the recovery of land within sects. 2 Foreclosure and 24 of this statute, and not an action for the recovery of the mort- actions. gage money within sect. 40 (Heath v. Pugh, 6 Q. B. Div. 340; Harlock v. Ashberry, 19 Ch. Div. 539; following the opinion of Lord St. Leonards in Irixon v. Vize, 3 Dr. & War. 104; and R. P. Stat. 121, 2nd ed.; and overruling, on this point, Dearman v. Wyche, 9 Sim. 570; Du Vigier v. Lee, 2 Hare, 326; and Sinclair v. Jackson, 17 Beav. 405). But for purposes of practice, an action for foreclosure and delivery of possession is not an action for the recovery of land within the R. S. C. (Ord. 18, r. 2).. In the case of an equitable charge on a reversionary interest in land, the statute commences to run against the right to foreclose from the time when the interest falls into possession (Hugill v. Wilkinson, 38 Ch. D. 480). A bill filed by the lord of a manor to recover his title deeds and court rolls was held barred by this section (Wells v. Doddington, 2 Cǝll. C. C. 73). Charities are within the operation of this section (.1. G. v. Magdalen Charities. Coll., 6 H. L. C. 189; see the note to sect. 25, post). Although the appointment of a receiver by the court does not prevent Effect of the bar under the statute against a stranger, yet it will prevent time appointment running in favour of a stranger to the suit (Wrixon v. Vize, 3 Dr. & of a receiver. |