possession, &c. sion (3) or remainder, or other future estate or interest, at the 37 & 38 Vict. 66 (b) By sect. 9 of this act the above section has been substituted for sect. 5 of 3 & 4 Will. 4, c. 27; and the case of future estates and interests now depends upon the above section construed together with the fourth branch of sect. 3 and sect. 20 of 3 & 4 Will. 4, c. 27, ante, pp. 120, 145. The language of sect. 5 of 3 & 4 Will. 4, c. 27, has been repeated in the part of the present section which precedes (c), with the addition, however, of the following words in the following places, viz., at (a) "or suit"; at (3) "or remainder or other future estate or interest"; at (7) or rent." Sect. 5 of 3 & 4 Will. 4, c. 27, was held to apply only to cases where a person other than the reversioner was entitled to the particular estate (Doe v. Moulsdale, 16 M. & W. 689, see p. 698). The saving of the section was applied to a term to secure an annuity (Re Bermingham, I. R. 5 Eq. 147). Under 3 & 4 Will. 4, c. 27, it was held, that upon the renewal of a lease the landlord's estate became an estate in possession within sects. 3 and 5 (Eccl. Commissioners v. Rowe, 5 App. Cas. 736, 741; disapproving of dicta in Corpus Christi Coll. v. Rogers, 49 L. J. Ex. 4). See ocet Commies coners v. Freconer, 1872 Wr In the case of an equitable charge on a reversionary interest in land, 70. time commences to run under this statute against the right to foreclose from the time when the interest falls into possession (Hugill v. Wilkinson, 38 Ch. D. 480). 37 & 38 Vict. c. 57, s. 2. In cases of infancy, coverture, or lunacy at the time when then six years (c) The proviso which follows here did not occur in 3 & 4 Will. 4, c. 27, s. 5. Where A., tenant for life, aliened, and the alienee entered, and seventeen years afterwards A. died; and the remainderman brought ejectment more than six but less than twelve years after A.'s death, the action was not barred. The proviso did not apply, inasmuch as the alienee and not A. was held to be the person last entitled to the particular estate." And under the earlier part of the section the plaintiff had twelve years from A.'s death (Pedder v. Hunt, 18 Q. B. Div. 565). (d) This seems to mean the person becoming entitled in possession to a future estate or interest. (e) This provision seems intended to apply only to persons claiming under the person barred under the earlier part of the section. The effect of 3 & 4 Will. 4, c. 27 in the cases (1), where the owner of an estate in possession grants out of it a particular estate with reversion or remainders following, after time has commenced to run against him; (2), where the owner of an estate in remainder, deals with it, while time is running against him; and (3), where a tenant for life and remainderman, deal with the estate which time is running against the tenant for life, is discussed Darb. & Bos. Stat. Lim. 236-242. 3. If at the time at which the right of any person to make an entry or distress, or to bring an action or suit, to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter menthe right of tioned, (that is to say,) infancy, coverture, idiotcy, lunacy, or action accrues, unsoundness of mind, then such person, or the person claiming to be allowed through him, may, notwithstanding the period of twelve years, from the ter- or six years, (as the case may be,) herein before limited shall have expired, make an entry or distress, or bring an action or suit, to recover such land or rent, at any time within six years next after the time at which the person to whom such right shall first have accrued shall have ceased to be under any such disability, or shall have died (whichever of those two events shall have first happened) (ƒ). mination of the disability or previous death. No time to be allowed for absence beyond seas. (f) By sect. 9 of this act, sects. 3, 4 and 5 have been substituted for sects. 16 and 17 of 3 & 4 Will. 4, c. 27 (ante, pp. 141, 144, where see notes). The saving of this section was applied in the case of Kennedy v. Lyell, 15 Q. B. D. 498. Where the statute once begins to run as against a tenant in tail, and at that time there is no disability on his part, it does not cease to run by reason of subsequent disability on his part or on the part of issue in tail claiming under him (Murray v. Watkins, 62 L. T. 796). See the cases under 21 Jac. 1, c. 16, s. 2, quoted ante, p. 141. As to the disability of coverture, see now M. W. P. Act, 1882, s. 1, sub-s. 2; Lowe v. Fox (15 Q. B. Div. 667); Weldon v. Neal (51 L. T. 289; 32 W. R. 828). 4. The time within which any such entry may be made, or any such action or suit may be brought as aforesaid, shall not in any case after the commencement of this act be extended or enlarged by reason of the absence beyond seas during all or any part of that time of the person having the right to make such entry, or to bring such action or suit, or of any person through whom he claims (g). (g) See the notes to 3 & 4 Will. 4, c. 77, ss. 16 and 19, ante, pp. 141, 145. c. 57, s. 5. ance for 5. No entry, distress, action, or suit shall be made or brought 37 & 38 Vict. by any person who at the time at which his right to make any entry or distress, or to bring an action or suit, to recover any Thirty years land or rent, shall have first accrued, shall be under any of the utmost allowdisabilities herein before mentioned, or by any person claiming disabilities. through him, but within thirty 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 thirty years, or although the term of six years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired (h). (7) See the note 3 & 4 Will. 4, c. 27, s. 17, ante, p. 144. As to the application of the present section to money paid into court under the Lands Clauses Act, 1845, s. 79, see Ex p. Chamberlain (14 Ch. D. 323). under an as not bar the end of twelve years after 6. When a tenant in tail of any land or rent shall have made In case of an assurance thereof which shall not operate to bar the estate or possession estates to take effect after or in defeasance of his estate tail, and surance by a any person shall by virtue of such assurance at the time of the tenant in tail execution thereof, or at any time afterwards, be in possession or which shall receipt of the profits of such land, or in the receipt of such rent, remainders, and the same person or any other person whosoever (other than they shall be some person entitled to such possession or receipt in respect of barred at the an estate which shall have taken effect after or in defeasance of the estate tail) shall continue or be in such possession or receipt that period, at for the period of twelve years next after the commencement of which the the time at which such assurance, if it had then been executed then executed, by such tenant in tail, or the person who would have been would have 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 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 (¿). (i) By sect. 9 of this act, the above section has been substituted for 3 & 4 Will. 4, c. 27, s. 23 (ante, p. 147), where see note. assurance, if barred them. end of twelve years from 7. When a mortgagee shall have obtained the possession or re- Mortgagor to ceipt of the profits of any land or the receipt of any rent com- be barred at prised in his mortgage, the mortgagor, or any person claiming a through him, shall not bring any action or suit to redeem the the time when mortgage but within twelve years next after the time at which the mortgagee took possesthe mortgagee obtained such possession or receipt, unless in the sion or from meantime an acknowledgment in writing of the title of the the last writmortgagor, or of his right to redemption, shall have been given ten acknowto the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person signed by the mortgagee or the person claiming through him; and in such case no such ledgment. c. 57, s. 7. 37 & 38 Vict. action or suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent; and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage (k). Money charged upon land and legacies to be deemed satisfied at the end of twelve years if no interest paid nor acknowledgment given in writing in the meantime. (k) By sect. 9 of this act, the above section has been substituted for 3 & 4 Will. 4, c. 27, s. 28, as to which see ante, p. 158. The twelve years bar under this section will not be extended by reason of any disability of the mortgagor (Forster v. Patterson, 17 Ch. D. 132; see under the earlier law, Kinsman v. Rouse, 17 Ch. D. 104). 8. No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit or proceeding shall be c. 57, s. 8. brought but within twelve years after such payment or acknow- 37 & 38 Vict, (7) By sect. 9 the above section has been substituted for 3 & 4 Will. 4, c. 27, s. 40, as to which see ante, p. 176. The present section is entirely prohibitory, and does not remove any bar which previously to its passing existed to the bringing of an action within twelve years (Frith v. Slingsby, 58 L. T. 483). The present section barred after twelve years the personal remedy of a Mortgages. mortgagee to obtain payment of his debt from his mortgagor, whether on a collateral bond given by him (Fearnside v. Flint, 22 Ch. D. 579), or on his covenant in the mortgage deed (Sutton v. Sutton, 22 Ch. D. 511). In the last-mentioned case, Cotton, L. J., referred to Hunter v. Nockolds (1 Mac. & G. 640, ante, p. 187), in which Lord Cottenham had held that in actions on covenant or specialty, sect. 42 of 3 & 4 Will. 4, c. 27, was controlled by sect. 3 of 3 & 4 Will. 4, c. 42. It might be right in the case of an act passed in 1833, to read it as explained by an act passed only three weeks later; but in the case of an act passed in 1874, there was no such necessity to explain it by an act passed in 1833 (22 Ch. Div. 519; see Re Frisby, 43 Ch. D. 110). The section, however, did not bar an action which was brought, not against the mortgagor himself, but against a surety who had covenanted for payment by the mortgage deed (Re Frisby, Alison v. Frisby, per Kay, J., and Bowen, L. J., Cotton, L. J., differing, 43 Ch. D. 106); or who had given a promissory note (Re Wolmershausen, 62 L. T. 541). And it has been held that an action on a bond given by a surety for a mortgagor to recover from the surety an indemnity against the non-payment by the mortgagor of the mortgage debt, is not within this section (Re Powers, Lindsell v. Phillips, 30 Ch. Div. 291). As to the application of the present section to the mortgage of a reversionary interest in personalty, see Re Lake (63 L. T. 416). The present section applies to judgments generally, not merely judg- Judgments. ments which operate as a charge on land (Hebblethwaite v. Peever, 1892, 1 proceedings under Q. B. 124). It barred after twelve years the right of a judgment creditor Judgment in a to obtain an adjudication in bankruptcy against the judgment debtor (Ex p. Tynte, 15 Ch. D. 125). barred after 12 years Kersonal action The present section did not apply to an action on the personal covenant Other of a lessee in respect of a royalty (Durley v. Tennant, 53 L. T. 257). It bar- charges y r. Johnstone red, however, after twelve made a charge on land by statute (Hornsey Board v. Monarch Society, 24 Q. B. Div. 1). Simple contract debts charged by will on real estate are not barred until the expiration of twelve years (Re Stephens, Warburton v. Stephens, 43 Ch. D. 39). The present section barred after twelve years the right to recover residuary estate (Re Rowe, Jacobs v. Hind, 61 L. T. 581; Re Davis, Evans v. Moore, 1891, 3 Ch. 119) An action by a residuary legatee to recover loss which has arisen from the non-realization of such residue, is not an action to recover a legacy within this section (Swain v. Bringeman, 1891, 3 Ch. 233; see Trustee Act, 1888, s. 8, post, p. 231). (1893) 19.8. 189. Legacies. The words "present right to receive" were considered in Hornsey Board "Present v. Monarch Society (24 Q. B. Div. 9), where it was said as to charges right to rethat in each case the moment to be looked at was the moment when the ceive." charge came into present operation. With regard to payments within this section, it has been said that a Part paypayment is made whenever there is a render of money to a person entitled ment. to receive it by a person liable to pay it (Re Frisby, Alison v Frisby, 43 Ch. D. 107). În cases within the section, payment of interest by one cocontractor or co-debtor will preserve the remedy against the other, sect. 14 of 19 & 20 Vict. c. 97 not applying (Re Frisby, Alison v. Frisby, 43 Ch. D. 111; see Re Powers, 30 Ch. Div. 291). Campbel! |