Real Property Time limited to six years when person tate out of possession, &c. Sect. 2. "A right to make an entry or distress, or to bring an action or suit, to recover any land or rent, shall be deemed to have first accrued, in respect of an estate or interest in reversion Provision for case of future or remainder, or other future estate or interest, at the time at which estates (1). the same shall have become an estate or interest in possession, by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof, or such rent shall have been received, notwithstanding the person claiming such land or rent, or some person through whom he claims, shall at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such land, or in receipt of such rent: but if the person last entitled to any particular estate on which future estate or interest was expectant shall not have been any entitled to the in the possession or receipt of the profits of such land, or in receipt particular es- of such rent, at the time when his interest determined, no such entry or distress shall be made, and no such action or suit shall be brought, by any person becoming entitled in possession to a future estate or interest, but within twelve years next after the time when the right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent, shall have first accrued to the person whose interest shall have so determined, or within six years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of those two periods shall be the longer; and if the right of any such person to make such entry or distress, or to bring any such action or suit, shall have been barred under this act, no person afterwards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will, or settlement, executed or taking effect after the time when a right to make an entry or distress, or to bring an action or suit for the recovery of such land or rent, shall have first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress, or bring any such action or suit, to recover such land or rent." In cases of infancy, Sect. 3. "If at the time at which the right of any person to coverture, or make an entry or distress, or to bring an action or suit, to recover lunacy, at the any land or rent, shall have first accrued as aforesaid, such time when the right of action person shall have been under any of the disabilities hereinafter action to recover possession of the land: it was held that his right was not barred: Pugh v. Heath, 7 App. Cas. 235. (7) The first part of this section re-enacts verbatim sect. 5 of 3 & 4 Will. 4, c. 27 (repealed by sect. 9 of this act), except as regards the words given in italics, which are here introduced for the first time. The latter part of the section is new. Limitation accrues, then the termina mentioned, (that is to say,) infancy, coverture (m), idiotcy, lunacy, Real Property or unsoundness of mind, then such person, or the person claiming through him, may, notwithstanding the period of twelve years, 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)." tion of the disability or previous death (»). allowed for absence Sect. 4. "The time within which such entry may be made, No time to be 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 beyond seas. 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." Sect. 5. No entry, distress, action, or suit shall be made or Thirty years brought 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 (m) The effect of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), is to render coverture no longer a disability within the meaning of this act, so far as relates to property the title to which accrues after the 31st of December, 1882. (n) This and the following section are substituted for sect. 16 of 3 & 4 Will. 4, c. 27 (repealed by sect. 9 of this act), the period of limitation after termination of the liability being reduced from ten to six years, and absence beyond seas being excluded from the causes of disability. "Where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period during those seven years; and if it be important to any one to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since the person was last heard of: " Per Denman, C. J., in Nepean v Doe, 2 M. & W. at p. 910; S.C. 2 Sm. L. C. 584. See also R. v. Inhabitants of Harborne, 2 A. & E. 540; 4 N. & M. 341; Reg. v. Lumley, L. R., 1 C. C. R. 196; Re Lewes' Trusts, L. R., 6 Ch. 356; Re Walker, L. R., 7 Ch. 120; Hickman v. Upsall, 4 Ch. D. 144. This saving clause applies to cases where there is a continuous succession of disabilities. A., whose title accrued in 1833, during her infancy, married while still a minor, and continued under coverture until 1870; it was held that an action then brought by her and her husband was maintainable: Borrows v. Ellison, L. R., 6 Ex. 129. (0) This section re-enacts sect. 17 of 3 & 4 Will. 4, c. 27 (repealed by sect. 9 of this act), substituting thirty and six years for forty and ten years respectively. utmost allowabilities (o). ance for dis Limitation Real Property recover any land or rent, shall have first accrued, shall be under any of the disabilities herein before mentioned, or by any person claiming 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 (o). In case of possession under an assurance by a tenant in tail, which shall not bar the remainders, they shall be barred at the end of twelve years after that period, at if which the assurance, then executed, would have barred them (p). Mortgagor to be barred at end of twelve in Sect. 6. "When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar the estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in receipt of such rent, and the same person or any other person whosoever (other than some person entitled to such possession or receipt of an estate which shall have taken effect after or in respect defeasance of the estate tail) shall continue or be in such possession or receipt for the period of twelve 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 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 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. Sect. 7. "When a mortgagee shall have obtained the possession or receipt of the profits of any land or the receipt of any years from the rent comprised in his mortgage, the mortgagor, or any person time when the claiming through him, shall not bring any action or suit to redeem the mortgage, but within twelve years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of mortgagee took possession, or from the last written ac (o) The disability of one coparcener is no protection to the other: Roe d. Langdon v. Rowlston, 2 Tau. 441. (p) This section re-enacts sect. 23 of 3 & 4 Will. 4, c. 27 (repealed by sect. 9 of this act), merely substituting twelve for twenty years. This section applies only to assurances which effectually bar the issue in tail (Penny v. Allen, 7 De G., M. & G. 409); and was held not to apply to the case of a conveyance by a settlor executed under a mistake as to his rights and not inrolled: Morgan v. Morgan, L. R., 10 Eq. 99; see also Mills v. Capel, L. R., 20 Eq. 692. Limitation the mortgagor, or of his right to redemption, shall have been Real Property given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee knowledg or the person claiming through him; and in such case no such ment (9). 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 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" (r). (q) This section re-enacts sect. 28 of 3 & 4 Will. 4, c. 27 (repealed by sect. 9 of this act), substituting twelve for twenty years. The words in italics are new. (r) A trust for sale of land by way of security for a loan is a mortgage within the meaning of this section: Locking v. Parker, L. R., 8 Ch. 30; see also Re Alison, Johnson v. Mounsey, 11 Ch. D. 284. As to acknowledgment of a mortgagor's title after his bankruptcy, see Markwick v. Hardingham, 15 Ch. D. 339. The old rule that no lapse of time barred the right of redemption of the whole of the mortgaged lands, so long as the mortgagors retained possession of a part, was abolished by sect. 28 of 3 & 4 Will. 4, c. 27. See Kinsman v. Rouse, 17 Ch. D. 104. Real Property Money land and legacies to be deemed satis fied at the end of twelve years if no interest paid nor acknowledgment given in writing in the meantime (s). Act to be read with 3 & 4 Sect. 8. "No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage (t), judgment (u), 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 brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given." Sect. 9. "From and after the commencement of this act all the provisions of the act passed in the session of the third and fourth years of the reign of his late Majesty King William the Fourth, certain parts chapter twenty-seven, except those contained in the several Will. 4, c. 27, of which are repealed, and other parts to be sections thereof next hereinafter mentioned, shall remain in full force, and shall be construed together with this act, and shall The lapse of twelve years from the time when a mortgagee takes possession constitutes an absolute bar to redemption, and is not extendible by reason of a mortgagor's disability: Forster v. Patterson, 17 Ch. D. 132. (s) This section re-enacts sect. 40 of 3 & 4 Will. 4, c. 27 (repealed by sect. 9 of this act), substituting twelve for twenty years. It applies to legacies payable out of personal estate only: Sheppard v. Duke, 9 Sim. 569; Piggott v. Jefferson, 12 Sim. 569. (t) An action on the covenant contained in a mortgage deed or on the collateral bond is within this section: Doe d. Jones v. Williams, 5 A. & E. 291; Sheppard v. Duke, 9 Sim. 567; Sutton v. Sutton, 22 Ch. D. 511; Fearnside v. Flint, 22 Ch. D. 579. Payment by a tenant of a mortgagor to a mortgagee, without the mortgagor's authority, is sufficient to keep alive the mortgagee's right to foreclose: Harlock v. Ashberry, 18 Ch. D. 229. (u) See Grenfell v. Girdlestone, 2 Y. & C. Ex. 662. In Berrington v. Evans (1 Y. & C. Ex. 434), it was held that a judgment creditor's claim had not been kept alive by the subsistence of a creditor's suit, under which he had not proved during twenty years. See as to judgments, infra, sub tit. MORTGAGES; and see Murphy v. Stone, 1 Dr. & Walsh, 236; Peyton v. M'Dermott, ib. at p. 211; Berrington v. Evans, 1 Y. 276; Sterndale v. Hankinson, 1 Sim. 393; Watson v. Birch, 15 Sim. 523. A vendor's lien for unpaid purchase-money is within this section, and not being an "express trust within sect. 25, claims to recover the same will be barred in twelve years: Toft v. Stephenson, 7 Ha. 1; S. C. 1 De G., M. & G. 28; see as to when the time begins to run, S. C. 5 De G., M. & G. 735. |