Statutes of If the possession has been obtained under an Limitations. assurance by the tenant in tail, which is not suffiDefective as- cient to bar the issue, though purporting to pass tenant in tail, the fee, it does not commence to be adverse under surance by Whether the retrospective. the last-mentioned clauses, until the death of the grantor, from which time the period of limitation begins to run. And if the possession has been obtained under an assurance that has only passed a base fee, the possession would not, under the clauses, be adverse, so long as there was in existence issue inheritable under the entail. The 23rd section in effect enacts, that possession under any assurance by tenant in tail, inoperative against those in remainder or reversion, (or, after such possession has once been had, possession by any person not entitled in respect of any interest expectant on the estate tail,) shall commence to be adverse to those in remainder or reversion, as soon as (but for such assurance) a like assurance, executed by the tenant in tail for the time being, would, without the consent of any other person, have barred them. The assurance contemplated by this clause is such an assurance as would, if made by a tenant in tail in possession, operate to bar the issue and remaindermen (a). There is nothing in the nature of the enactment 23rd section is contained in this clause which affords any reason for excluding assurances previously made from its operation; nor do the somewhat loose terms in which it is expressed, seem necessarily to require such exclusion. Lord St. Leonards, however, expressed a decided opinion against the retrospective operation of this clause: Sugd. Vend. 483. See also Penny v. Allen, 7 De G., M. & G. 409. This question is not now of any great practical importance. Defective assurances made by tenant in tail after the fines and reco abolition of veries. In cases of defective assurances made subsequently to the act abolishing fines and recoveries, there can be no difficulty: if the assurance fails as a bar for want of enrolment, or other inherent defect, the 23rd section does not apply, and the time does not run until the grantor's death, (unless the assurance failed even of passing the freehold,) (a) See Morgan v. Morgan, L. R., 10 Eq. 99. when the possession, being in right of a mere of a mere tenancy at will, would commence to be adverse at the time indicated by the 7th section. If the assurance fails for want of the consent of the protector, the time commences at the moment when the office of protector has ceased, provided, of course, the tenant in tail for the time being is not then under disability; for the 23rd clause contains, not in express words, but by necessary consequence, a saving of disabilities, independently of the other clauses specially enacted for that purpose (b). Statutes of Limitations. ing the death life. A difficulty is thrown upon the remainderman or As to presumreversioner where the tenant for life has died, or of tenant for is presumed to have died, abroad, no tidings having been heard of him. At common law, a person who had not been heard of for seven years was presumed to have died (Thorne v. Rolff, Dy. 185); and the statute 19 Car. 2, c. 6, set out below (sub tit. LEASES), enacted, that in any action by a reversioner, in the several cases therein mentioned, the death of the tenant for life, or cestui que vie, should be presumed after absence for seven years, unless the contrary were proved. The same period was adopted in the statute De Bigamis, 1 Jac. 1, c. 11; and in analogy to this statute, the rule has been adopted in the courts, of presuming all persons to be dead who have not been heard of during seven years: Doe d. George v. Jesson, 6 East, 80; Hopewell v. De Pinna, 2 Camp. 113; Doe d. Lloyd v. Deakin, 4 B. & Ald. 433; but see Rex v. Harborne, 4 Nev. & M. 341 (c). Until the end of seven years, therefore, the reversioner or (b) Lord St. Leonards is of opinion that base fees created before the act by the tenant in tail in possession are unassailable, the remedy of the remainderman being taken away by the 36th section, which abolishes real actions: Sugd. Vend. 484. (e) Where Lord Denman, C. J., said, "It appears to me, that nothing could be more absurd than that there should be a presumption of life, or death without reference to the age, circumstances, situation of life, and common habits of the party. Can there be the same presumption as to a party who is 100, and to one who is 35-as to a party who was in good health, and one who was proved to have then had a disorder upon him which was likely speedily to terminate in his death? It is altogether a question of fact: " p. 344. Limitations. of death. Statutes of remainderman, unless he can prove the death of the particular tenant, is not in a condition to sue. The Presumption lessor of the plaintiff in ejectment must also prove that he sues in time; that is, he must prove that the tenant for life was in existence within twenty [now twelve] years preceding the action. If he relies upon the presumption above mentioned, to prove that the cestui que vie died during some part of the seven years, he is not entitled to have it presumed that he was alive at any time during the seven years; least of all, that he survived to the end of that period; in other words, there is no presumption that a party was alive at any time. "The presumption of law relates only to the fact of death, and the time of death, whenever it is material, must be a subject of distinct proof:" Nepean v. Doe d. Knight, 2 M. & W. 894, 910. It may now be regarded as well established that if a person has not been heard of for seven years he will be presumed to be dead (b); but that, in the absence of special circumstances, the time of death is not a matter of presumption. The person upon whom it rests to prove either that a person was alive or that he was dead at a particular period, must establish the fact by direct evidence: Lamb v. Orton, 6 Jur., N. S. 61; Re Phene's Trusts, L. R., 5 Ch. 139; Re Lewis's Trusts, L. R., 6 Ch. 356; Re Corbishley's Trusts, 14 Ch. D. 846. As to presuming, from special circumstances, that death took place at a particular time, see Watson v. Knight, 1 Stark. 121; Dixon v. Dixon, 3 B. C. C. 509; Mason v. Mason, 1 Mer. 308; Ommaney v. Stillwell, 23 Beav. 328; Re Beasney's Trusts, L. R., 7 Eq. 498; Hickman v. Upsall, 4 Ch. D. 144. Where a husband and his wife were drowned by the same accident,there was no presumption that the husband survived so as to entitle his next of kin to the wife's property: Satterthwaite v. Powell, 1 Curt. 705; see also Wing v. Angrave, 8 H. L. 183. (6) Although, however, after seven years' absence without tidings the death of a person may, for many purposes be presumed as between adverse litigants, a conveyancer could not rely upon such a presumption in a question of title as between vendor and purchaser. See Sugden, Vend. 418. Sect. 3. Right deemed to The 3rd section is devoted to the purpose of Statutes of explaining at what time, under various circum- Limitations. stances, the right to enter, distrain, or sue, is to be deemed to have first accrued. The cases included within this section are divided into five classes :1st. When the person claiming, or some one through whom he claims, having been in possession session has or receipt of the profits, shall have been dispossessed, been disconor have discontinued such possession or receipt; in which case the right is to be deemed to have first accrued at the time of such dispossession or discontinuance. The effect which actual ouster formerly produced, is now, therefore, attributed to a mere discontinuance of possession, and if the party in possession at any time can show that, throughout the period required by the statute, the possession has been either vacant, or not rightfully enjoyed, he has a complete answer to the claim of the original owner. tinued. against mar The application of this clause to the circumstances Adverse posattending the title of a married woman to the in- session heritance, seems to involve some difficulty. In a ried women. case which came before the Court of Queen's Bench, the facts were these:-A feme sole in possession of an estate in fee simple married John Corby, in the year 1772, by whom she had a son. After occupying the premises for a few years, they removed to another part of the country. In 1828 Mrs. Corby died, and her husband died in 1832. The action was brought by the son more than forty years after the abandonment of possession (the circumstances attending which did not appear). It was contended, that the husband being entitled by the curtesy, up to the time of his death, in 1832, the son's right did not accrue until that period, the case falling within the 5th section; but the action was held to have been barred by the 17th section: Doe d. Corby v. Branson, 4 Nev. & M. 664: S. C. nom. Doe d. Corbyn v. Bramston, 3 A. & E. 63. To Doe d. Corbyn This decision appears to be open to observation. Remarks on pass over the preliminary objection, that no v. Branson. inquiry seems to have been made whether the possession was adverse at the time of the passing of Limitations. Statutes of the act, and therefore whether the 15th section did' not apply (the action was commenced in 1835), it is to be observed, that the judgment of the court was founded on the 17th section, which has for its object merely to prevent the period of limitation from being extended by disabilities beyond the period of forty years. In the case before the court there was no disability in question. On the birth of the son the husband had become tenant by the curtesy for his own life and in his own right (c), during which time neither the wife nor her heir could be entitled to enter, and this occurred before the commencement of the adverse tenancy. After the birth of issue and during her husband's life, therefore, the wife was not under disability within the 16th and 17th sections, because she had no right to make an entry, &c. See Bac. Ab. Curtesy (E); 2nd Inst. 301, 309. The wife's title having first accrued to her son in possession on the death of the husband, the case comes within the protection of the 5th section, which gives the reversioner a new right on the determination of the particular estate, although he, or one through whom he claims, was formerly in possession. Estate by the curtesy. When a husband and wife join in conveying land of which she is seised in fee by a deed, which for want of a fine (or statutory acknowledgment) is not binding on her, time will not run against her until her husband's interest which passed by the conveyance determines, i.e., from the death of the (c) "After issue had he shall do homage alone, and is become tenant to the lord; and the avowry shall be made only upon the husband in the life of the wife. **** And it is adjudged in 29 Edw. 3, that the tenant by the curtesie cannot claim by a devise, and waive the state of his tenancy by the curtesie, because, saith the book, the freehold commenced in him before the devise for term of his life."--1st Inst. 30 a. And this account of the estate by the curtesy is confirmed by the rule as to estates tail before the Statute de Donis. Such estates could not be aliened until the birth of issue in tail; and if the donee neglected to exercise his power during the life of the issue, and the issue died, he could no longer aliene. But if a feme tenant in tail special, had issue in tail, though she survived her husband, the estate was absolutely free from the condition, the husband's estate by the curtesy initiate being regarded as alienation for his life: Nevil's case, 7 Rep. 62; Payne's case, 8 Rep. 35. |