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3 of 4 Will. 4, In 1847, D. joined in a conveyance of the land from X. to a purchaser, c. 27, s. 23. and thereby purported to grant, release and confirm the estate to the pur
chaser in fee. The deed was not enrolled, and no disentailing assurance was executed. The purchaser entered into immediate possession. In 1860, D. died leaving an only son, who attained twenty-one in 1867, and filed a bill to recover the land in 1868. Held, that his claim was not barred by this statute. (Morgan v. Morgan, L. R., 10 Eq. 99.)
6. Limitation of Time as to Suits in Equity. Time of Limitation fixed with reference to the Legal
Limitation. No suit in equity 24. After the said thirty-first day of December, one thouthe time when the sand eight hundred and thirty-three, no person claiming any plaintiff, if en- land or rent in equity shall bring any suit to recover the same titled at law, might have but within the period during which, by virtue of the provisions brought an action. hereinbefore contained, he might have made an entry or dis
tress, or brought an action to recover the same respectively, if he had been entitled at law to such estate, interest or right in
or to the same as he shall claim therein in equity (r). Ilow far courts of () By this section twenty years' possession is a bar to saits in respect cquity bound by of equitable rights, but in the case of disability ten years is allowed by the Statutes of Limi- 16th section (ante, p. 186) next after the disability has ceased; but by the tation,
17th section (ante, p. 191) no suit can be brought after the lapse of forty years from the accruer of the right, whatever disabilities may have existed.
Courts of equity have constantly guided themselves by this principle, that wherever the legislature has limited a period for proceedings at law, equity will, in analogous cases, consider the equitable rights as bound by the same limitation. (1 P. Wms. 742; 3 Ib. 143; Prec. Ch. 518.) Thus, in the case of equitable titles to land, equity required relief to be sought within the same period in which an ejectment would lie at law; and in cases of personal claims it also requires relief to be sought within the period prescribed for personal suits at law of a like nature. If, therefore, the ordinary limitation of such suits at law be six years, courts of equity will follow the same period of limitation. (Edsell v. Buchanan, 1 Ves. sen. 83; Com. Dig. Chancery, 1; Smith v. Clay, 3 Br. C. C. 639, n.; Cholmondeley v. Clinton, 2 Jac. & W.156; Hovenden v. Lord Annesley, 2 Sch. & Lef. 629.) Lord Redesdale held that courts of equity acted not merely by analogy, but in obedience to the Statute of Limitations upon all legal titles and demands, and could not act contrary to their provisions, and that the Statute of Limitations virtually included courts of equity; for when the legislature limited the proceedings at law in certain cases, and provided no express limitation for proceedings in equity, it must be taken to have contemplated that equity followed the lan, and therefore to have virtually enacted in the same cases a limitation in equity. (2 Sch. & Lef. 630, 631; 1 Ib. 428; Foley v. Hill, 1 Phill. C. C. 405.) This statute was intended to put an end altogether to the discretion of courts of equity in those cases where they had before acted by analogy to the time limited at law. That was an analogy founded both in law and good sense, but it no longer remains in the discretion of the court, but is incorporated in the statute. (Berrington v. Erans, 1 Y. & Coll. 439, 440.) Those courts also, by their own rules, independently of any statutes of limitation, give great effect to length of time, and refer frequently to those statutes for no other purpose than as furnishing a convenient measure for the length of time that ought to operate as a bar in equity of any particular demand. (17 Ves. 97.) This section of the statute only bars equitable rights so far as they would have been barred if they had been legal rights. (Archbold v. Scully, 9 H. L. C. 360.) Time is a bar in equity to stale demands independent of this statute. A bill filed by tenant for life in remainder against the representatives of 3 f 4 Will. 4, a prior tenant for life for an account of timber improperly cut, was dis
c. 27, s. 24. missed with costs on account of the delay, the bill not having been filed until nearly twenty years after the death of the first tenant for life. (Har- Delay. court v. White, 28 Beav. 303.)
The statutory rule, 3 & 4 Will. 4, c. 27, ss. 2, 3, 4, 5, which gives to a Equitable waste. remainderman twenty years from the time when his title accrues in possession, for bringing an action or suit for the property, applies to a claim for compensation for equitable waste as well as to a claim to the land itself; and, therefore, an account of equitable waste was decreed against the estate of the tenant for life thirty-eight years after the waste was committed, the title of the plaintiff as remainderman in tail having accrued within twenty years before the filing of the bill. (Duke of Leeds v. Earl Amherst, 2 Phill. 117. See Morris v. Morris, 4 Jur., N. S. 964; 6 W. R. 427.)
Where a tenant for life impeachable for waste commits legal waste by Legal waste. wrongfully cutting timber, time runs against the remainderman from the time of the cutting, and it appears that the period of limitation is six years. (Seagram v. Knight, L. R., 2 Ch. 628; Higginbotham v. Hawkins, L. R., 7 Ch. 676. See Birch Wolfe v. Birch, L. R., 9 Eq. 633.).
According to Lord St. Leonards, a bill of foreclosure is not a suit in Foreclosure suits. equity for the recovery of the money charged upon the land, although it may lead to that; but it is, in effect, a suit to obtain the equity of redemption, which is, in the view of equity, an actual estate. The right to file a bill of foreclosure, whether the mortgage be legal or equitable, falls within the 24th section of the 3 & 4 Will. 4, c. 27, and the 7 Will. 4 & 1 Vict. c. 28 (see post, sect. 28), and the time is governed by the legal right of the party to bring an action, or if he have not the legal estate, by the right which he would have had, if his estate had been a legal instead of an equitable one. (Wrixon v. Vize, 3 Dru. & War. 104; Sugd. R. P. Stat. 94, 121, 2nd ed. See, however, Dearman v. Wyche, 9 Sim. 570, and the note to sect. 40, post.) Where an equitable incumbrancer files a bill to assert his claim, he may be assisted by the fact that there is a fund in court, the rights in which have not been ascertained. (Lancaster v. Evors, 10 Beav. 154.)
The lord of a manor granted a lease of the manor for three lives, and deposited the court rolls with the lessee ; upon the expiration of the lease by the death of the surviving life, the lord requested the representatives of the lessee to deliver back the court rolls, of which no notice nor any proceeding was taken until twenty-two years after, in 1844, when a bill was filed by the lord to recover the title deeds and court rolls. It was held, upon a plea of the statute, that the suit was brought too late, that which was tantamount to a conversion and adverse possession having taken place in 1822. The bill was retained for a year, to enable the plaintiffs to try an action at law. (Dean and Chapter of Wells v. Doddington, 2 Coll. C. C. 73.)
Charities are within the operation of this section. (Att.-Gen. v. Mag- Charities. dalen College, Oxford, 6 H. L. C. 189. See the note to sect. 25, post.)
In order to prevent the operation of the statute in a court of equity in Effect of proceeda matter of simple contract, it was sufficient if the bill was filed within six ings in equity in years after the accruer of the right to sue, although the subpæna was not
operation of the sued out till after the expiration of that period. (Coppin v. Gray, 1 Y. & Coll. C. C. 205; Purcell v. Blennerhassett, 3 Jones & L. 24.) With reference to the Statute of Limitations, an amended bill will date from the day of the filing of the original bill, and not from the day of the amendment. (Blair v. Ormond, 1 De G. & S. 428; Byron v. Cooper, 11 Cl. & Fin. 556; Plowden v. Thorpe, 7 Cl. & Fin. 164; Att.-Gen. v. Hall, 11 Price, 760.) Although the mere filing of a bill will operate by itself to save the bar of the statute, yet the court will know how to deal with any improper delay, by not giving the benefit of the statute to the plaintiff, if there was anything in his conduct to disentitle him to its assistance. (Forster v. Thompson, 4 Dru. & War. 318; Coppin v. Gray, 1 Y. & Coll
. C. C. 205; Boyd v.' Higginson, Flan. & K. 603.) When a defendant is out of the jurisdiction, and the bill prays process against him
3 f: 4 Will. 4, when he shall come within it, the operation of the Statute of Limitations c. 27, 8. 24. is suspended, though he has neither been served nor appeared in the suit.
(Hele v. Lord Bexley, 20 Beav. 127.) A plaintiff was required to account for the delay of nineteen years in filing his bill, where the circumstances of the parties had changed by deaths; and the foundation of the suit being a legal demand, the court, after such delay, declined to act, unless the demand was established in an action. (Blair v. Ormond, 1 De G. & S. 428.)
A testator died in 1821, having devised and bequeathed his real and personal estate to trustees upon certain trusts. In 1826, a bill was filed for the execution of the trusts as to the personal estate. In 1847, a supplemental bill was filed raising questions on the will as to the real estate in which the heir who was then unknown was interested ; and in 1849, another supplemental bill was filed to bring the heir who was then ascertained before the court : it was held, that the heir was barred by lapse of time from claiming the real estate adversely to the trustees, for the institution of a suit to carry the trusts of a will into execution could not preserve the rights of the heir who claimed adversely to such will, but that the heir-at-law was not barred from claiming part of the real estate as being in the events that had happened undisposed of and held by the trustees in trust for bim.
(Simmons v. Rudall, 1 Sim., N. S. 115; 15 Jur. 102.) Pendency of suits. The existence of a creditors' suit for the administration of the estate of a
deceased debtor does not prevent the operation of the statute against a debt, in respect of which no claim is made under the decree. (Tatam v. Williams, 3 Hare, 347.) The right of a vendor to enforce his lien for unpaid purchase-money is not preserved by the existence of a suit by the creditors of the devisor of the estate under whose will the sale took place, nor by suits by the residuary devisces and legatees of the purchaser for the administration of his estate. (Toft v. Stephenson, 7 Hare, 1.) See also Alsop v. Bell, 24 Beav. 451, and the note under sect. 40 (post) as to when time ceases to run in the case of claims brought in under decree in administration suits.
An ejectment bill, filed in 1842, stated that the plaintiff's alleged right to the land accrued in 1812; that a bill had been filed in 1824 to recover the property; and that an ejectment had been brought in 1832, which was stayed until the plaintiff had paid the costs of a former ejectment; but it did not state the result of the suit or action: it was held, that it must be inferred that they had failed, and that they did not prevent the operation of the Statute of Limitations. (Bampton v. Birchall, 5 Beav. 67.)
A plaintiff brought an action of ejectment against a person in possession, and afterwards filed a bill of discovery in aid of the action, and to restrain the defendant from setting up outstanding terms. By the death of the defendant the suit abated, and the benefit of the action at law became lost. After twenty years' adverse possession, the plaintiff having filed a bill of revivor, a demurrer thereto was allowed, on the ground that no effectual proceeding could now be had at law, and that the discovery and relief sought would therefore be useless. (Bampton v. Birchall, 11 Beav. 38 ;
1 Pbill. C. C. 568.) Lunacy.
Where a creditor is prevented from recovering by lunacy time will not
(Stedman v. Hart, Kay, 607.) But proceedings in lunacy were held not to exclude the operation of the statute on a promissory note. (Rock v. Cooke, 1 De G. & Sm. 675; 17 L. J., Ch. 93 ; 12 Jur. 5.) A petition in lunacy, after the death of the lunatic, by his committee, and a reference to the master thereon, followed by a report finding that a sum of money had been expended by the committee in the maintenance of the lunatic, is not a proceeding which will take the claim of the committee out of the Statute of Limitations, as against the heir-at-law of the lunatic, who was not a party to the application. (Wilkinson v. Wilkinson, 9 Hare, 204.) Where a fund in the hands of a lunatic as executrix was carried over to an account in the names of herself and other persons interested, and the income was paid to her, it was held that the order of court for the carrying over of the fund preserved the right of the parties interested, but that arrears of income could only be recovered for six years. (Re Walker, L. R., 7 Ch. 120.) Where time has commenced to run against the right of 3 f 4 Will. 4, a legatee to recover his legacy, and the executor is subsequently found a c. 27, s. 24. lunatic, time will continue to run during the lunucy. (Boldero v. Halpin, 19 W. R. 320.)
Although the appointment of a receiver by the Court of Chancery does Effect of appointnot prevent the bar under the statute against a stranger, yet it will prevent ment of a receiver. time running in favour of a stranger to the suit. (Wrixon v. t'ize, 3 Dru. & War. 104, see p. 123; Parkinson v. Lucas, 28 Beav. 627.) The possession of the receiver in a canse in which a trustee of the legal estate is made a party as such, may fairly be treated as the possession of the trustee. For many purposes the possession of the receiver is the possession of the party entitled to the lands, and time will not run against a person in possession. (Gresley v. Adderley, 1 Swans. 579; Boehm v. Wood, Turn. & R. 345; Wrixon v. Vize, 3 Dru. & War. 104. See Groome v. Blake, 8 Ir. C. L. R. 428; Re Butler's Estate, 13 Ir. Ch. R. 453.)
The appointment of receiver in the matter of an infant will not prevent the operation of the Statute of Limitations on a claim affecting the minor's estate, notwithstanding the fact, that the master, in a report ascertaining the nature of the minor's property, has expressly found that the minor's estate was subject to that incumbrance. (Harrison v. Duignan, 2 Dru. & War. 295. See Greenway v. Bromfield, 9 Hare, 203.
Where, by the interposition of a court of equity to prevent an act right- When equity will fully or wrongfully intended, the defendant has lost a remedy at law, a court prevent Statute of of equity will give him a remedy equivalent to that from which the inter- used as a bar. position of such court has debarred him. Thus, where the Statute of Limitations has run pending an injunction, the court will restrain a debtor from taking advantage of the statute. (Anon., 2 Cas. Ch. 217; Bronn v. Newall, 2 M. & Cr. 572.) And a court of equity will supply a defect in any title which has been prejudiced by an order of the court. If, for instance, an injunction has been continued so long as to deprive a party of his legal remedy, who has a clear right to recover at law, a court of equity would restrain the party who obtained the injunction from pleading the Statute of Limitations. (Fyson v. Pole, 3 Y. & Coll. 273.) So equity will give interest on the arrears of an annuity (Morgan v. Morgan, 2 Dick. 643; see Grant v. Grant, 3 Sim. 340, see p. 364; 3 Russ. 598, and see p. 607), where the annuitant, with a term of years and a power of entry and distress, had by means of the injunction been prevented from proceeding with an action of ejectment, which had been commenced for recovery of such arrears. So a party who has been restrained in equity from proceeding at law, while the debt was under the penalty of the bond, will be entitled to the principal and interest beyond the penalty. (Duval v. Terry, Show. P. C. 15, cited in Grant v. Grant, 3 Russ. 607; see O'Donel v. Browne, 1 Ball & B. 262.) Where a party applies to a court of equity, and carries on an unfounded litigation, protracted under circumstances, and for a length of time, which deprives his adversary of his legal rights, a court of equity will supply and administer, within its own jurisdiction, a substitute for that legal right, of which the party so prosecuting an unfounded claim has deprived his adversary. (Pultney v. Warren, 6 Ves. 73; The East India Co. v. Campion, 11 Bligh, 158, 186, 187; see Furnival v. Boyle, 4 Russ. 142; Morgan v. Morgan, 2 Dick. 643; Grant v. Grant, 3 Sim. 863; Sirdefield v. Price, 2 Y. & C. 73; Brown v. Nerall, 2 M. & Cr. 572, 573.)
Express Trust 25. Provided always, and be it further enacted, that when In cases of express any land or rent shall be vested in a trustee upon any express shall'not be trust, the right of the cestui que trust, or any person claiming deemed to have through him, to bring a suit against the trustee, or any person conveyance to : claiming through him, to recover such land or rent, shall be purchaser. deemed to have first accrued, according to the meaning of this
3 8: 4 Will. 4, act, at and not before the time at which such land or rent c. 27, s. 25.
shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through
This section applies to express trusts only.
(8) This section is confined to express trusts; that is, trusts expressly declared by a deed or a will, or some other written instrument; it does not mean a trust that is to be made out by circumstances; the trustee must be expressly appointed by some written instrument, and the effect is, that a person who is under some instrument an express trustee, or who derives title under such a trustee, is precluded, how long soever he may have been in the enjoyment of the property, from setting up the statute; but if a person has been in possession, not being a trustee under some instrument, but still being in under such circumstances that the court, on the principles of equity, would hold him a trustee, then this section does not apply, and if the possession of such a constructive trustee has continued for more than twenty years, he may set up the statute against the party who but for the loss of time would be the right owner. (Per Kindersley, V.-C., Petre v. Petre, 1 Drew. 393.) The rule that trusts are not within the Statute of Limitations was held not to apply, where a claim was made after a great length of time against a trustee by implication of law arising upon a doubtful equity. (Townshend v. Townshend, 1 Cox, 28; 1 Bro. C. C. 550.) Though no time bars a direct trust as between cestui que trust and trustee, a court of equity will not allow a man to make out a case of constructive trust at any distance of time; for where the length of time would render it extremely difficult to ascertain the true state of the fact, or where the true state of the fact is easily ascertained, and where relief would originally have been given upon the ground of constructive trust, it is refused to a party, who after long acquiescence comes into a court of equity to seek that relief. (Beckford v. Wade, 17 Ves. 97; Ex parte Hassell, 3 Y. & Coll. 622;, Bell v. Bell, 1 Lloyd & G. temp. Plunket, 65. See Bonny v. Ridgard, cited 4 Br. C. C. 138.) In Salter v. Cavanagh (1 Drury & Walsh, 668), it was held, that where a party had been expressly named in a will, his representatives were trustees within this section; and that though a constructive trust would be barred by that statute, and might have been barred previously to it by length of time, yet that that only applied to cases where the trust did not arise on the face of the instrument, but was to be made out by evidence. (See as to constructive trusts, Lewin on Trusts, 147 et seq., 5th ed.)
Where a person acted as trustce of a will containing express trusts of realty, though the trust estate was not vested in her, she was held to have placed herself in the position of an express trustee. (Life Association of Scotland v. Siddall, 3 De G., F. & J. 58.) A cestui que trust of real estate under a will was discharged in 1825 under the Insolvent Act, but omitted the estate from his schedule. In 1831, he became bankrupt, and his assignee in bankruptcy took a conveyance of the legal estate from the trustee, in trust for the creditors under the bankruptcy: held, that the legal estate thereby became vested in the assignee upon an express trust within this section, viz., the trust declared by the will, the benefit of which belonged to the creditors under the insolvency. (Sturgis v. Morse, 3 De G. & J. 1.) See also Drummond v. Sant, L. R., 6 Q. B. 768.
A trust for sale of land by way of security for money lent is not an express trust within this section. (Locking v. Parker, W. N. 1872, p. 201.) Where lands in Ireland held under church leases were settled upon A. for life, with remainder to several as tenants in common, and one of the remaindermen entered into possession of the lands and procured a fee-farm grant to himself: it was held, that he did not take the fee-farm grant as a trustee within this section for himself and his co-tenants. (Re Dane's Estate, I. R., 5 Eq. 498.) Where an executor assigned certain leaseholds belonging to his testator to a purchaser at an undervalue, the purchaser having notice of the trusts of the will, and twenty-three years afterwards
Who are express trustees.