Page images
PDF
EPUB

Crown.

situation as its principal. Therefore, the statute of limitations may be 3 & 4 Will. 4, pleaded to a scire facias issued by the crown against the drawer of a bill c. 27, 8. 1. of exchange, which was barred in the hands of the crown debtor, upon the ground that the crown is only entitled to its debtor's right, and cannot create or reserve a right, if none existed, or it has become barred; and that as the crown debtor could not have recovered if the statute had been pleaded, so neither could the crown, standing in the same situation as its debtor. (Res v. Morrall, 6 Price, 24.) But where a right has vested in the crown before the statute has run against the former owner, the rights of the crown are not barred or affected by the statute of limitations, as the crown is not within its operation. (Lambert v. Tayler, 4 Barn. & Cress. 138. See Tayler v. Att.-Gen., 10 Sim. 413, as to course of proceeding by a subject to enforce a claim of property against the crown. In re Robson, 2 Phil. C. C. 64; In re Baron de Bode, 16. 85. See 23 & 24 Vict. c. 31, as to petitions of right and the orders thereon, 8 Jur., N. S. 283, Part II.)

The statutes of limitation which affect the rights of the Duke of Cornwall Statutes of Ilmiare 7 & 8 Vict. c. 105, ss. 71-88; 23 & 24 Vict. c. 53; and 24 & 25 Vict. tation as to rights c. 62; as to which, see Darb. & Bos. Stat. Lim. 413; Brown's Law of Limi- of Duke of Corntation, 251, 415.

Bat though the crown was not bound by the statute of limitations, yet a Presumption of grant from it may be presumed from great length of possession, not because srants from the the court really thinks a grant has been made, because it is not probable a grant should bave existed without its being upon record; but they presume the fact for the purpose and from a principle of quieting the possession. (Corporation of Hull v. Horner, Cowp. 102, 215.) Thus grants from the crown of markets and the like, after an uninterrupted enjoyment of twenty years, (11 East, 419,) have been presumed. So an enfranchisement of a copyhold may, upon sufficient evidence, be presumed against the crown. (Roe d. Johnson v. Ireland, 11 East, 280.) So where the title of a family to an advowson was evidenced by deeds and conveyances for a period of nearly 140 years, and there had been three presentations by them and none by the crown, it was held, that a grant from the crown might be presumed. (Gibson v. Clark, 1 Jac. & Walk. 159. See 3 T. R. 158.)

King Charles 1, by letters patent, granted certain mills, &c., subject to a fee-farm rent, with a proviso, that if the mills should at any time thereafter be in decay, &c., his majesty and his successors should have a right of reentry. Subsequently, under the provisions of 22 Car. 2, c. 6, the fee-farm rent was sold. It did not appear that the right of re-entry had ever been specially granted or released. It was held that, having regard to the sale of the fee-farm rent, no right of re-entry capable of being enforced remained in the crown; and that such right did not pass to the purchaser of the rent. (Floner v. Hartopp, 12 L. J., N. S., Ch. 507; 7 Jur. 613.) In a case where Charles 1 had granted the soil between high and low water marks along the coast of the county of Southampton, but no possession had been taken of the spot in question under the grant until 1784, the crown baving remained in possession for upwards of 150 years after the grant, this was held to create a presumption against it, and the parties not having been in possession more than nineteen or twenty years, no title was gained by adverse possession against the crown. (Parmeter and others v. Att.Gen., 1 Dow. 316.) An objection to a title that two fee-farm rents, created by letters patent by James 1, were not shown to have been extinguished, was overruled, it being proved that no claim had been made by the crown of the rent from the year 1706, and no proof of any previous claim. (Simpson v. Gutteridge, 1 Madd. 609.)

Enjoyment of property for 110 years by a parish, although no conveyance appeared in evidence, was held to be conclusive proof of ownership against purchasers from the crown, relying upon a parliamentary survey and the court rolls of a manor, to show that the right to the property had formerly been in the crown. (Att.-Gen. v. Lord Hotham, 1 Turn. & Russ. 210.) Bat although grants on record have been presumed, there seems to Presumption of be no instance of the presumption of an inrolment of a deed which was inrolments and made essential by statute. (Doe v. Waterton, 3 B. & Ald. 149, 151; Wright registration, v. Smythies, 10 East, 409.) It might be otherwise if some foundation were

Port duties,

ment.

3 & 4 Will. 4, laid for raising a presumption by showing that there was a chasm in the c. 27, s. 1. records corresponding with the date of the supposed conveyance. (Allen v.

Walker, 1 Jac. & Walk. 619.) The registry of a deed of lands in a register county will not be presumed. (Doe d. Beauland v. Hirst, 11 Price, 475.) An inrolment of a tithe award was presumed where the usage of paying tithe was shown. (Macdougall v. Purrier, 2 Dow & CI. 135, cited 8 Q. B. 580.)

It seems that where port duties are claimed under a grant from the crown, which appears from the evidence to be inrolled, but which is not produced by the plaintiff, the jury ought not to be directed to presume such grant upon mere evidence of usage. (Brune v. Thompson, 4 Q. B. 543.) As to the presumption that a claim for port duties had a legal origin, see Foreman v. The Free Fishers of Whitstable (L. R., 4 H. L. 266), and

cases there cited. Presumption of After a long possession the court will, in some cases, even presume an act an act of parlia

of parliament in order to protect a right. (Att.-Gen. v. Ewelme Hospital, 17 Beav. 366.) Upon the dicta of certain judges, that even an act of parliament might be presumed, if necessary, in support of an ancient usage, it was observed by Lord Denman, C. J., that even such a strong presumption

ight not be unreasonable, where the usage has been such as nothing but an act of parliament could legalize, and has prevailed in those obscure ages, in which not only the records of parliament may have been negligently kept, but even the form of parliament itself is scarcely to be discerned. But no judge would venture to direct a jury that they could affirm the passing of an act of parliament within the last 250 years, on an important subject of the most general interest, of which no vestige can be found on the parliament roll, in the journals of either house of parliament, in any records of the courts of law, in the numerous treatises of enlightened authors, devoting unwearied industry and the greatest accuracy on similar inquiries, or in the history of the country. (Reg. v. Chapter of Exeter, 12 Ad. & E. 532, 533. See further, 1 Taylor, Ev. 144, 5th ed.)

By stat. 3 & 4 Will. 4, c. 99, ss. 12, 13, quit rents and other rents payable to the crown in respect of any honors, manors, lands, and hereditaments in England or Wales, are placed under the management of the Commissioners of Woods and Forests and Land Revenues; and the Lord High Treasurer, or the Commissioners of the Treasury, are empowered, by warrant under his or their hands, to remit, release or discharge all or any of the same rents, and the arrears thereof. (See 10 Geo. 4, c. 50; 2 Will. 4, c. 1.)

No land or rent to be recovered

years after the right of action accrued to the

2. Period of Limitation fixed, and when Right first accrues.

Twenty Years. 2. After the thirty-first day of December, one thousand eight but within twenty hundred and thirty-three, no person shall make an entry or

distress, or bring an action to recover any land or rent, but

within twenty years next after the time at which the right to clalınant, or some make such entry or distress, or to bring such action, shall have person whose estate he claims. first accrued to some person through whom he claims, or if

such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same (k).

(k) This section governs cases which fall within its general words, even governs cases not though not included among the instances given in sect. 3. A testator

charged an annuity on land, payable quarterly, with a power of distress if the annuity should be in arrear for twenty days next after any quarterly day of payment. The testator died in 1804, and on the 17th March, 1835,

This section

included among
instances in
sect. 3.
James v. Salter.

the defendants distrained for 8701. for twenty-nine years' arrears of the 3 & 4 Will. 4, annuity, ending at Christmas, 1834. It appeared that the right to make c. 27, s. 2. a distress for the annuity first accrued to the annuitant, on the expiration of the twenty days next after the first quarterly payment subsequent to the testator's death, that is, at the very latest, some time in April, 1805. It also appeared that there was no payment or receipt of the annuity by the annuitant before the distress was put in in March, 1835, for it was for the whole of the arrears since the testator's death. The second issue on the case arose upon a plea in bar, framed upon the second section of stat. 3 & 4 Will. 4, c. 27. The facts brought the case within the second section, unless the third section did in terms exclude from the operation of the second the claim of any person whose right to a rent is derived under a will, by reason of the words “other than a will” in the third section (post). The court, in the first instance, expressed an opinion that the case was excluded from the operation of the second section, by reason of its not being comprehended within the third, which third section was thought to contain an enameration of the instances to which only the second section could be held to be applicable; and the court held that the annuitant was not barred by the lapse of twenty years, and the non-payment of the annuity. (James 1. Salter, 2 Bing. N. C. 505.) Upon further consideration, the court changed their former opinion. Tindal, C. J., in giving judgment, said " that the case must have been governed by the second section, if that section had stood alone, cannot be doubted; and upon a more close examination of the third section, the object and intent of it seems to us to be no more than this: to explain and give a construction to the enactment contained in the second clause, as to the time at which the right to make a distress for any rent shall be deemed to have first accrued, in those cases only in which doubt or difficulty might occur; leaving every case which plainly falls within the general words of the second section, but is not included amongst the instances given by the third, to be governed by the operation of the second.” And it was accordingly held that the claim to the annuity was barred by the lapse of twenty years since the right to distrain first accrued. (James v. Salter, 3 Bing. N. C. 544. See pp. 553—555; 4 Scott, 168; 5 Dowl. P. C. 496.)

By this section the right of entry is taken away, unless an entry be made within twenty years of the right first accruing, where the party is not entitled to the benefit of the 15th section, which has now generally ceased to operate. (Holmes v. Nerlands, 11 Ad. & El. 44; 3 P. & D. 128 ; Nerlands v. Holmes, 8 Q. B. 679.)

Where a lord had seized copyholds quousque, and had held them for actions and suits nearly forty years, and the heir of the former tenant filed a bill to compel to recover land

within this admittance by the lord, it was held that this was a suit to recover land

section, within this section, and that the right of the heir was barred. (Walters v. Webb, L. R., 5 Ch. 531.) An action at law for an assignment of dower is barred in twenty years by this section, and a suit in equity for the same purpose is barred in the same time. (Marshall v. Smith, 5 Giff. 37.)

A plaintiff admitted to be in possession and seeking to displace the title under which the defendants claim, on the ground that it is barred by the 3 & 4 Will, 4, c. 27, s. 2, need not show what that title was and how it was barred; but a general allegation, so as to bring the case within that section, is sufficient. (Jones v. Jones, 16 M. & W. 699.)

Where a lessor permits his lessee, during the continuance of the leases, to pay no rent for twenty years, the lessor is not therefore barred by the stat. 3 & 4 Will. 4, c. 27, s. 2, from recovering the premises in ejectment, but the case comes within the latter branch of the third section. (Doe d. Darey v. Oxenham, 7 Mees. & W. 131. See post.)

In Paget v. Foley (2 Bing. N. R. 679; 3 Scott, 135), Tindal, C. J., said, Rent within this “This statute was proposed to include other rents of the same nature as section. those to which the act, according to its title and preamble, was intended to apply, rather than conventional rents reserved on a lease.” It was not necessary, however, to decide the point in that case, for the reason which will hereafter appear. (See post.) The Real Property Commissioners seem also to have contemplated an assimilation of limitation for land and

S.

L

Grant v Ellis.

3 $: 4 Will. 4, all rents, other than conventionary rents between landlord and tenant. (See c. 27, s. 2. 1 Real Prop. Rep. p. 50.)

The word “rent" in the second section of the act does not include rents reserved on leases for years, but is confined to rents existing as an inheritance distinct from the land, and for which before the statute the party entitled might have had an assize, such as ancient rents service, fee-farm rents, or the like. (Grant v. Ellis, 9 M. & W. 113.) Mere non-receipt therefore of rent under a lease, for more than twenty years, does not deprive the lessor of his right to rent under the lease. (16.) A lessee of premises for one hundred and twenty-five years from the 25th of March, 1782, by a lease dated the 21st of July, 1787, and which contained clanses of distress and re-entry, demised the same to a lessee for one hundred and twenty years from the 25th of March last past. Twenty-two years' arrears of rent accrued due to the representatives of the lessor in the last-mentioned lease : it was held, that although the original lessee had no reversion expectant on the determination of the lease of the 21st of July, 1787, yet that the rent reserved by the lease was a conventional equivalent for the right of occupation, and that therefore the right of the representatives of the original lessee to the rent during the residue of the term was not barred by this section. (Re Turner, 11 Ir. Ch. Rep., N. S. 304.) It is now clearly established that so long as the relation of landlord and tenant under a lease in writing subsists as a legal relation, the landlord's right to rent is not barred by nonpayment, for however long a time. (Per Lord Cranworth, Archbold v. Scully, 9 H. L. Ca. 360.)

An additional rent in the nature of a penal rent reserved by indenture of demise between landlord and tenant was held not to be within the second section of 3 & 4 Will. 4, c. 27. (Daly v. Lord Bloomfield, 5 Ir. L. R. 65.) As to the use of the word "rent" in the statute, see further, Doe v. Angell

(9 Q. B. 328, quoted under sect. 9, post.). Issue in tall barred An ordinary tenant in tail would, by virtue of the first and second secby this section.

tions, lose his right after twenty years' want of possession in the time of his ancestor. (Earl of Abergavenny v. Brace, L. R., 7 Ex. 172.)

But where by a private act of 2 & 3 Ph. & M. certain lands were limited to E. N. and others successively in tail male, with limitations over, and an ultimate limitation to the crown; and it was provided that “no feoffment, discontinuance, fine or recovery, with voucher or otherwise, or any other act or acts thereafter to be made, done, suffered or acknowledged of the premises or any part or parcel thereof,” by E. N. or the other persons named, * or by any of them, or by any of their heirs male of their several bodies, should bind or conclude or put from entry" the crown “or any of the heirs in tail;" a lease for three lives was made in 1781 by the heir in tail male of E. N., then in possession, of part of the lands so settled: the lease expired in 1832, and since that time the land had been held by the defendant, and those through whom he claimed, without payment of rent or acknowledgment of the title of the tenants in tail for the time being. In 1868 the plaintiff became entitled to the entailed lands as heir in tail male of E. N.: it was held that he was not barred by this statute from recovering the lands comprised in the lease. (Earl of Abergavenny v. Brace, L. R., 7 Ex. 145.)

By the common law there was no stated or fixed period within which it

was necessary to commence actions, but afterwards certain remarkable 3 & 4 Will. 4,

events were from time to time selected for that purpose as the return of

King John from Ireland, and the coronation of Henry the Third. A cer32 Hen. 8, c. 2. tain period was limited by stat. 32 Hen. 8, c. 2, which enacted that no

person should maintain any writ of right, or make any prescription, title or claim of, to or for any manors, lands, tenements, rents, annuities, commons, pensions, portions, corodies, or other hereditaments of the possession of his or their ancestor or predecessor, and declare and allege any further seisin or possession of his or their ancestor or predecessor, but within sixty years next before the teste of the said writ, or next before the said prescription, title or claim so made. Actions upon the possession of the ancestor of the party claiming were limited to fifty years; and those upon the seisin or possession of the party himself to thirty years; and

Limitation of real actions before

c. 27.

formedons in remainder or reverter were required to be sued within fifty 3 & 4 Will. 4, years. The writ of intrusion came within the stat. 32 Hen. 8, c. 2, and not c. 27, s. 2. within the stat. 21 Jac. 1, c. 16, and the limitation of time for suing out such writ was fifty years. This writ was maintainable by one in remainder for an intrusion made after the determination of an estate pur auter vie ; and a demandant who claimed under a devise might maintain the writ. (Peircey, dem., Gardner, ten., 3 Bing. N. C. 748.) Dignities were held not to be within the Statute of Limitations, and even an adverse possession and exercise of a dignity by persons not entitled to it, for a period of eighty-five years, was resolved by the House of Lords not to bar the real claimant. (In the barony of Willoughby of Paiham, Lords' Journ. vol. 31, p. 350 ; see 3 Cru. Dig. 202.) But offices with fees and profits are within them. (Lords' Journ. vol. 36, p. 295.) An annuity was not within the stat. 32 Hen. 8, c. 2, for the plaintiff did not declare upon a seisin but upon his grant. (Bro. St. Lim. 26 ; see ante, p. 139.) So that statute did not extend to a corporation aggregate, as mayor and commonalty, nor to a dean and chapter, as they did not count upon a seisin of any ancestor or predecessor, but upon their own possession. But it was otherwise as to a corporation sole ; for if a bishop or other sole corporation sued upon a seisin of his predecessor, he was barred if the seisin was not within sixty years. (Bro. St. Lim. 33 ; Bac. Abr. Limitation of Actions, (B).)

The stat. 21 Jac. 1, c. 16, sects. 1 and 2 (repealed hy 26 & 27 Vict. Limitation of c. 125), limited the period for all writs of formedon to twenty years, and right of entry. enacted that no persons should at any time thereafter make any entry into 21 Jac. 1, c. 16. any lands, tenements or hereditaments, but within twenty years next after his title should first descend or accrue to the same, and, in default thereof, such persons so not entering, and their heirs, should be disabled from such entry after to be made.

The provisions of the statutes 32 Hen. 8, c. 2, and the 21 Jac. 1, c. 16, were extended to Ireland by the Irish stat. 10 Car. 1, sess. 2, c. 6, by making the limitation in a writ of right on the seisin of the party's ancestors sixty years, and in a possessory action upon possession of ancestors fifty years, and in an action upon the party's own seisin or possession twenty years, and in an avowry or cognizance for rent, suit or service, forty years. Actions of formedon and scire facias on fines and recoveries were limited to twenty years after the title or cause of action accrued, and an entry apon lands must be made within twenty years after the title accrued, with an exception in favour of persons being infants, feme coverts, non compos mentis, imprisoned, or beyond seas, who should sue within ten years after the removal of the disability.

By the stat. 21 Jac. 1, c. 16, s. 1, no entry could be made, and therefore no ejectinent maintained, but within twenty years after the title of entry first accrued, with the exception of persons under disabilities. There were two periods from which the term of twenty years limited by that statute was to be computed, one with respect to the bts of persons entitled in possession, and the other with respect to the rights of persons entitled to future interests. Less difficulty arose with respect to the latter, because it can easily be proved when such rights would have come into possession by the determination of the preceding estates ; but the former period was to be computed from the time when the wrongdoer acquired the possession of the freehold adversely to the title of the owner, whose estate thereby became a mere right ; and in many cases it was very difficult to ascertain what would constitute such possession.

By stat. 4 Hen. 7, c. 24, a fine with proclamations was made a bar to all Non-claim on persons having present rights of entry, and not being under any disabilities, fines. if they did not claim within five years after the proclamations made ; to 4 Hen. 7, c. 24. all persons under disabilities if they did not claim within five years after their disabilities were removed : and to all persons not having present rights, if they did not claim within five years after their rights of entry accrued, unless under disabilities, and then within five years after the removal of their disabilities. By the abolition of fines, the practice of gaining a title by a fine, and non-claim will be prevented in future. (See 3 & 4 Will, 4, c. 74, s. 2, post.) In order that a fine should operate as a

« EelmineJätka »