death, it was held, that the Statute of Limitations did not apply, inasmuch as B.'s life estate passed to the purchaser; B. therefore could not enter, and, as the contingent remainder could not pass by the surrender (Doe v. Tomkins, 11 East, 185; Doe v. Wilson, 4 B. & Ald. 303), the heir-at-law had no right of entry until B.'s death. (Doe d. Baverstock v. Rolfe, 3 Nev. & P. 648; 8 Ad. & Ell. 650.)

In 1788 estates were settled by marriage settlement to the use of the wife for life, with remainder to her issue in tail, with remainder to the settlor (whose heiress at law she was) in fee. In 1818, by deeds to which the husband and wife and their only son, R. G., were parties, and by a recovery suffered in pursuance thereof, the estates were limited to the use of the husband for life, remainder to the wife for life, remainder to R. G. the son for life, remainder to his issue in tail, remainder to J. F. his sister for life, with other remainders over. The husband died in 1819, the wife in 1822, and R. G. in 1828: it was held, that, inasmuch as the estate of J. F. was carved out of the estate by R. G., she had the same period for bringing an ejectment in respect of any estates comprised in the above deeds, as he would have had if he had continued alive, viz. twenty years from the year 1822, when his remainder came into possession. The effect of the deed of 1818, and of recovery was to bar all remainders over, and to create new estates out of his estate tail. (Doe d. Curzon v. Edmonds, 6 Mees. & W. 295.)

The effect of the statute 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.)

Where a landlord merely omits to compel his lessee, during the continuance of a lease, to pay rent for twenty years, and there has been no payment to any other person, the landlord is not therefore barred, but may recover in ejectment, at any time within twenty years after the determination of the lease. (Doe d. Davy v. Oxenham, 7 Mees. & W. 131, 133, 134; see Grant v. Ellis, 9 M. & W. 113.) The former case was followed where the lessor of the plaintiff in ejectment had purchased the reversion, subject to a lease for years, at a rent of 47. and to an annuity of 47., and the tenant in possession under the lease had paid the sum of 41. yearly for upwards of twenty years to the annuitant, until his death in 1830, and subsequently to his widow it was held, that it was for the jury to consider in what character the tenant made such annual payment, and if, as agent for his landlord, the possession was not adverse, and the right of the person entitled to the reversion is not barred by this statute. (Doe d. Newman v. Godsill, 5 Jur. 170; 4 Q. B. 603, n.)

For the case of leases containing a clause of re-entry for non-payment of rent, see note to sect. 4, post.

If husband and wife being seised in fee in right of the wife convey to a purchaser by a conveyance not operative to bind her, the wife, if she survives, and if not her heir, may, on the husband's death, recover the land, notwithstanding the purchaser may have been in possession for forty years. It was held that the right of the wife came within the fourth branch of sect. 3, as being a future estate or interest. (Jumpsen v. Pitchers, 13 Sim. 327). The case would be different if the husband and wife simply discontinued possession. (Sugden, R. P. Stat. 83. See also Cannon v. Rimington, 12 C. B. 1.)

3 & 4 Will. 4,

c. 27, s. 3.

See further as to future interests the notes to sect. 5 and sect. 20 (post). (p) The fifth branch of sect. 3 and sect. 4 deal with rights arising on for- (5) Rights arising feitures and breaches of conditions, as to which see note to sect. 4.

Forfeiture.

4. Provided always, that when any right to make an entry or distress, or to bring an action to recover any land or rent by

on forfeiture or breach of condition.

when advantage of forfeiture is not

taken by re

c. 27, s. 4.

mainderman, he shall have a new right when his

3 & 4 Will. 4, reason of any forfeiture or breach of condition, shall have first accrued in respect of any estate or interest, in reversion or remainder, and the land or rent shall not have been recovered by virtue of such right, the right to make an entry or distress, or estate comes into bring an action to recover such land or rent, shall be deemed to have first accrued, in respect of such estate or interest, at the time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened (g).

possession.

Law before the statute.

Entry for forfei

(9) Before this statute it was held that though a remainderman expectant on an estate for life or years, to whom a right to enter, or bring an ejectment, is given by the forfeiture of the tenant for life or years, may take immediate advantage of a forfeiture, yet he is not bound to do so; therefore, if he pursues his remedy within his time after the remainder attached, it will be sufficient, nor can the Statute of Limitations be insisted on against him, for not coming within twenty years after his title first accrued by the forfeiture. (1 Ves. sen. 278. See Doe d. Allen v. Blakeway, 5 Carr. & P. 563.) So where a testator, having made a lease for years of an estate, with a clause of re-entry on non-payment of rent, devised it, and after his death his heir received the rent during the lease (being a period of more than twenty years), without any steps having been taken by the devisee to recover the possession: it was held, that the devisee was not barred, for he could not have entered during the lease; and although a forfeiture had been committed, he was not obliged to take advantage of it. (Doe d. Cooke v. Danvers, 7 East, 299.) So also strangers to fines, having different and distinct rights by several titles accruing at different times, were allowed five years to avoid a fine after the accruing of each title. (Cruise, Dig. tit. XXXV. ss. 29, 34. See 1 Wms. Saund. 535, ed. 1871. See also Fenn v. Smart, 12 East, 444; Doe d. Blight v. Pett, 11 Ad. & El. 842; 4 P. & D. 278.)

The lord of a manor is barred by the Statute of Limitations from entering ture of copy holds. for a forfeiture after twenty years. (Witton v. Peacock, 3 M. & Keen, 325.) If a copyholder made a lease of his copyholds contrary to the custom of the manor, and the lord died before his entry or seizure for the forfeiture, the reversioner or remainderman could never take advantage of the forfeiture done or committed before their time (Lady Montagu's case, Cro. Jac. 301; Co. Cop. s. 60; Doe d. Tarrant v. Hellier, 3 Term Rep. 162); unless the act of forfeiture destroys the estate. (3 Term Rep. 173.) As to the forfeiture of copyholds, see Shelford on Copyholds, pp. 148-172; Chamberlain v. Drake (2 Sid. 8); and for waste, Eastcourt v. Weeks (Salk. 186; Lutw. 799); Bird v. Kirkby (1 Mod. 199; Carter, 237; Gilb. Ten. 249). But the lord may seize copyhold land quousque in virtue of a right which accrued to the preceding lord on default of the heirs coming in to be admitted, although he be devisee, and not the heir of the preceding lord; but, to entitle him to make such seizure, there must be three proclamations made at three consecutive courts. (Doe d. Bover v. Trueman, 1 B. & Ad. 736. See Walters v. Webb, L. R., 9 Eq. 83; 5 Ch. 531.) The admittance of a copyholder, after a forfeiture incurred by levying a fine, would be a waiver, and any act equally solemn will have the same effect. (3 Term Rep. 172.)

Clause of re-entry for non-payment of rent.

It was formerly held in Ireland that where a landlord, or those through whom he claims, have received no rent for upwards of twenty years under an existing lease, containing an express clause of re-entry for the nonpayment, he is barred by the 2nd section of 3 & 4 Will. 4, c. 27, from recovering either the land or the rent, the case falling expressly within that section. (Doe d. Mannion v. Bingham, 3 Ir. L. R. 456.) But this decision has since been overruled. (Cosbie v. Sugrue, 9 Ir. L. R. 17; Parke v. M'Loughlin, 1 Ir. C. L. R. 186; Spratt v. Sherlock, 3 Ir. C. L. R. 69.) The same question in England appears to depend upon different principles: it has been suggested that under such a clause in England a fresh right to re-enter accrues every time a fresh default in payment of rent is made.

(Darb. & Bos. Stat. Lim. 251. See Doe v. Bliss, 4 Taunt. 725; Macher 3 & 4 Will. 4, v. Foundling Hospital, 1 Ves. & B. 191.)

“In cases of conditions of re-entry there is a difference between leases for lives and leases for years; and with respect to the latter, there is also a difference, between them, which arises entirely from the manner in which the condition of re-entry is expressed in the lease. As to leases for lives, it is held that, if the tenant neglect or refuse to pay his rent after a regular demand, or is guilty of any other breach of the condition of re-entry, the lease is only voidable, and therefore not determined until the lessor reenters, that is, brings an ejectment for the forfeiture, though the clause of the condition should be, that for the non-payment of the rent, or the like, the lease shall cease and be void. For it is a rule that where an estate commences by livery it cannot be determined before entry. (Browning v. Beston, Plowd. 135, 136.) Therefore if the lessor, after notice of the forfeiture, which is a material and issuable fact (Pennant's case, 3 Rep. 64 b; Roe v. Harrison, 2 T. R. 430), accepts rents which accrued due after, or does any other act which amounts to a dispensation of the forfeiture, the

c. 27, s. 4. Old law as to con

ditions of re

entry;

in leases for lives;

lease, which was before voidable, is thereby affirmed. But if there be a in leases for years. lease for years, with a condition that, for non-payment of the rent, or the like, the lease shall be null and void, if the lessor makes a legal demand of the rent, and the lessee neglects or refuses to pay, or if the lessee is guilty of any other breach of the condition of re-entry, the lease is absolutely determined, and cannot be set up again by acceptance of rent due after the breach of the condition, or by any other act. (Goodright v. Davids, Cowp. 804.) But if in such a lease the clause be, that for non-payment of the rent it should be lawful for the lessor to re-enter, the lease is only voidable, and may be affirmed by acceptance of rent accrued due after, or other act, if the lessor had notice of the breach of the condition at the time. Browning and Beston's case, Plowd. 133; Pennant's case, 3 Rep. 64 a, b; 65 a, b; Co. Lit. 215, a; Goodright v. Davids, Cowp. 804." (1 Wms. Saund, 441, ed. 1871.)

Present state of

Since the statutes 7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106, s. 2, estates for life may commence without livery; and the distinction taken above the law. between leases for lives and leases for years (in those cases where the clause is, that the lease shall be void on breach of the condition) seems therefore to be now inapplicable. (1 Smith's L. C. 37, 6th ed.) But even in the case of a lease for years which contains a proviso that it shall be void for non-payment of rent or other breach of covenant, the modern authorities seem to establish that such a lease in case of a breach shall be regarded as voidable only, so that the landlord, by the acceptance of rent or the like, with notice of the breach, will waive the forfeiture. (Roberts v. Davey, 4 B. & Ad. 664; Doe v. Bancks, 4 B. & A. 401; Arnsby v. Woodward, 6 B. & C. 519; Read v. Farr, 6 M. & S. 121; Malins v. Freeman, 4 Bing. N. C. 395; Doe v. Birch, 1 M. & W. 402; Hyde v. Watts, 12 M. & W. 254; Hughes v. Palmer, 19 C. B., N. S. 393; 13 W. R. 974.)

A distress made by a landlord on the assignee of his lessee is a waiver of a forfeiture incurred by a prior breach of covenant; but if there be a continuing breach the landlord is not precluded from taking advantage of it for a time subsequent to the distress. (Doe d. Flower v. Peck, 1 Barn. & Ad. 428.) A lessor has a right to make the estate of his lessee conditional, and the assignee of such an estate takes it subject to the condition, and liable to be divested by the breach of it. It is immaterial in a case in which the lessor, and not the assignee of the reversion, is the real plaintiff, whether the condition is for the performance of some covenant which runs with the land, or one which is wholly collateral; upon the breach of either species of covenant, the estate ceases when the lessor chooses to take advantage of his right of re-entry. (Ib. 436, 437.)

It was held, that a condition of re-entry on breach of covenants in a lease could only operate during the continuance of the lease; when that was determined the proviso was gone, and the reversioner, having never been in possession by right of re-entry for the condition broken, could not take advantage of it, and that the lessee, who had sown the land, was entitled to emblements. (Johns v. Whitley, 3 Wils 127.)

S.

M

3 & 4 Will. 4, c. 27, s. 4.

Notice of condition.

Where a party is really ignorant of the existence of an instrument in which the condition is contained, and where he would have a good title if there were no such instrument, a neglect of the terms of the condition will not subject him to a loss of the estate; and the party entitled to avail himself of the condition must take care to make it known to the person who was to comply with it. (France's case, 8 Rep. 89 b; Shep. T. 148; Mallon v. Fitzgerald, 3 Mod. 28; Skinn. 125; Doe d. Kenrick v. Lord W. Beauclerk, 11 East, 657.) An heir at law to whom a devise is made upon condition, is not liable to lose his estate by a breach of the condition, unless he has notice of the devise which contains it; and the onus of proving that the notice has been given lies upon the party entitled to the benefit of the breach of the condition. (Doe à. Taylor v. Crisp, 1 P. & Dav. 37; 8 Ad. & Ell. 779; 2 Jur. 943.)

Reversioner to

Reversioner.

5. Provided also, that a right to make an entry or distress or have a new right. to bring an action to recover any land or rent shall be deemed to have first accrued, in respect of an estate or interest in reversion, at the time at which 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 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 possession or receipt of the profits of such land, or in receipt of such rent (r).

(r) This section appears to refer to the words in the fourth branch of sect. 3, "and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest." By this section the right of the reversioner is not affected by a possession by him, or any person through whom he claims, previously to the creation of the estate which shall have determined. (Darb. & Bos. Stat. Lim. 235.) But it will be seen by the 20th section (post), that several rights in the same person may, contrary to the rule which previously prevailed, be barred without any new allowance.

This section, which relates to estates in reversion expectant on the determination of a particular estate, applies only to cases where another person than the reversioner is entitled to the particular estate. (Doe d. Hall v. Moulsdale, 16 M. & W. 689; see p. 698.)

In 1812, A., by deed, granted an annuity for two lives, payable out of certain lands of which he was the owner in fee in possession, and demised the lands for a term of 200 years to secure the annuity, with a proviso for cesser on death of survivor of cestui que vies and payment of all arrears. In 1814, A. granted another annuity payable out of same lands, and demised them to a trustee for 500 years to secure that annuity. In 1822, annuitant of 1812 filed bill to raise arrears of his annuity, to which bill annuitant of 1814 was not party. In 1828, a receiver was appointed in the suit, who continued in receipt of the rents until the lands were sold by the Landed Estates Court in 1868, on petition of the annuitant of 1812. The arrears of that annuity were paid off out of the purchase-money, and there remained in court a surplus which was claimed by annuitant of 1814 in payment of arrears of his annuity. No payment had been made in respect of the last-mentioned annuity, nor had any previous steps been taken to raise the arrears. The objection of the Statute of Limitations having been set up, it was held that, inasmuch as the term of 1812 had been attached in possession on the lands by appointment of receiver in 1828, the term of 1814 then became an estate in reversion within the saving of sect. 5, and con

c. 27, s. 5.

tinued as such until 1868, when by payment of arrears of annuity of 1812 3 & 4 Will. 4, the prior term ceased; and as the trusts of the term of 1814, being express, were saved by sect. 25, the claim of annuitant of 1814 was not barred by the statute. (Re Bermingham's Estate, I. R., 5 Eq. 147.)

Administrator.

6. For the purposes of this act an administrator claiming the estate or interest of the deceased person of whose chattels he shall be appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of administration (s).

(s) In the case of intestacy, it had been decided that, as to all rights occurring after the death of the intestate, the statutes of limitation only began to run from the grant of administration. Hence a right to a chattel interest in lands might have been kept alive, notwithstanding adverse possession, to the expiration of the term, however long, and instances had occurred of serious practical inconvenience from that state of the law. Thus, where a term was granted in remainder expectant on another existing term, and before the expiration of the first term the grantee died; at the expiration of the first term the lessor entered and levied a fine before administration granted; and after the five years' non-claim on the fine had run, letters of administration were obtained of the effects of the person entitled to the reversionary term, and it was held that the administrator should have five years from that time, as there was no right of entry before. (Stanford's case, Cro. Jac. 61; cited in Cary v. Stephenson, 2 Salk. 421; 8. C., Carth. 335; Skinn. 555; 4 Mod. 376.) In another case, where there was a gift of a term of years to A. for life, remainder to B. for life, remainder to C., who died in 1736; A. in 1757; B. in 1779. Administration of the effects of C. was first granted in 1816, eighty years from his death, and his administrator brought an ejectment; he was nonsuited at the trial, but the Court of Common Pleas granted a new trial. (Fairclaim v. Little, cited in 5 Barn. & Ald. 214.) The object of this clause of the act is to make the period of limitation with respect to chattel interests in land begin to run from the time when the right of entry arose and might have been acquired by taking out letters of administration. The next of kin and creditors of the intestate will have no just cause of complaint, if for twenty years they neglect their rights, and great injustice might be done to the party in possession by allowing a stale demand to be brought forward after a longer lapse of time. (See 1st Real Prop. Rep. p. 48.)

The distinction between an administrator and an executor is, that an administrator derives his title wholly from the ecclesiastical court, and has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant. (Woolley v. Clark, 5 B. & Ald. 744.) The title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate, so that he may recover against a wrongdoer who has seized or converted the goods of the intestate after his death in an action of trespass or trover. (Tharpe v. Stallwood, 5 M. & G. 760; Foster v. Bates, 12 Mees. & W. 233; Welchman v. Sturgis, 13 Q. B. 552.) But this doctrine of relation exists only in cases where the act done is for the benefit of the estate. (Morgan v. Thomas, 8 Exch. 302; 22 L. J., Ex. 152; 17 Jur. 283.) An executor, on the other hand, derives his title from the will itself, and the property vests in him from the moment of the testator's death. (Hickman v. Walker, Willes, 27.)

An administrator had obtained the estate without death of deceased.

to claim as if he

interval after

Old rule that time ran from grant of

administration.

Distinction be

tween adminis

trator and executor.

Where letters of administration have been granted, the administrator is Nature of admientitled to all the rights which the intestate had at the time of his death nistrator's rights. vested in him; although no right of action accrues to the administrator

until he has obtained letters of administration. (Pratt v. Swaine, 8 Barn.