3 & 4 Will. 4,

c. 27, s. 40.

(e) A vendor's lien for unpaid purchase-money is within this section; and not being an express trust within sect. 25, his right to recover will be barred in twenty years. (Toft v. Stephenson, 7 Hare, 1; D., M. & G. 28.) As to when time commences to run, see Toft v. Stephenson, 5 D., M. VENDOR'S LIEN. & G. 735.

Where a vendor delivers possession of an estate to a purchaser without Nature of the receiving the purchase-money, equity, whether the estate be conveyed lien. (Chapman v. Tanner, 1 Vern. 267; Pollerfen v. Moore, 3 Atk. 272; and see 1 Br. C. C. 302, 424, and 6 Ves. jun. 483; Mackreth v. Symmons, 15 Ves. 329), or be not conveyed (Smith v. Hibbard, 2 Dick. 730; Charles v. Andrews, 9 Mod. 152), and although there was not any special agreement for that purpose, and whether the estate be freehold or copyhold (Winter v. Lord Anson, 3 Russ. 488), gives the vendor a lien on the land for the money. But the application of this doctrine depends upon circumstances showing the intention of the parties; see the principle stated by Bacon, V.-C. (Re Albert, &c. Co., Ex parte Western, &c. Society, L. R., 11 Eq. 179.) Thus, where a vendor took a mortgage of part of the estate, his lien over When lost. the rest of the estate was held to be excluded (Capper v. Spottiswoode, Taml. 21); and where he took a mortgage of the whole estate for part of the unpaid purchase-money his lien for the balance was lost. (Bond v. Kent, 2 Vern. 281. See 1 Sch. & Lef. 135.) So there is no lien where the vendor takes a mortgage of another estate (6 Ves. 760), or a charge upon stock (Nairn v. Prowse, 6 Ves. 752); nor where the consideration for the conveyance was expressed to be the covenant for the payment of an annuity and a sum in gross in the event of the purchaser's marriage. (Clark v. Royle, 3 Sim. 499. See Stuart v. Ferguson, 1 Hayes, 452.) Nor where a vendor, in lieu of the price of 3,000l., agreed to accept an annuity of 1007. a year for the joint lives of the vendor's intended husband and herself, in case the purchasers should so long live, the purchaser engaging that his personal representatives should within three months after his decease, in certain events but not in all events, pay a further sum of 3,000l. (Parrott v. Sweetland, 3 Myl. & K. 655.)

So where A. agreed to purchase an estate from B., and upon the estate being conveyed to grant a life annuity to B. to be secured by bond, it was held that B. had no lien. (Dixon v. Gayfere, 21 Beav. 118; 1 De G. & J. 655.) See further, as to lien in the case of a sale in consideration of an annuity, Matthew v. Bowler, 6 Ha. 110; Buckland v. Pocknell, 13 Sim. 406. And where land was purchased under the Lands Clauses Act for the construction of a public work, the consideration being a yearly rentcharge, it was held there was no lien. (Earl of Jersey v. Briton Ferry, &c. Co., L. R., 7 Eq. 409.) The vendor was, under the circumstances, held to have lost his lien as against the mortgagees of the purchaser in Cood v. Pollard, 9 Price, 544; Smith v. Ecans, 28 Beav. 59. For the lien in the case of purchases with trust money, see White v. Wakefield, 7 Sim. 401; Muir v. Jolly, 26 Beav. 143. A covenant between vendor and purchaser that the purchase-money should be repaid within two years after re-sale discharges the vendor's lien. (Ex parte Parker, 1 Glyn & J. 228.)

The lien, however, may subsist notwithstanding a personal security is When not lost. given for the money, whether by bond, bill of exchange (Hughes v. Kearney, 1 Sch. & Lef. 132; Grant v. Mills, 2 Ves. & B. 306; Ex parte Peake, 1 Madd. 346) or promissory note. (Gibbons v. Baddall, 2 Eq. Cas. Abr. 682, n. b.) The taking drafts which are dishonoured will not per se deprive the vendor of his right of lien. (Hughes v. Kearney, 1 Sch. & Lef. 136; see Grant v. Mills, 2 Ves. & B. 306.) A vendor was held not to have waived his lien on the estate sold, by taking the promissory note of the vendee and receiving its amount by discount. (Ex parte Loaring, 2 Rose, 79.) And where part of the purchase-money for an estate was, in pursuance of the agreement for the purchase, secured by the bond of the purchaser payable after the death of the vendor with interest, it was held that the vendor had a lien for the amount. (Winter v. Lord Anson, 3 Russ. 488.) So where a purchaser gave a bond for the purchase

3 & 4 Will. 4, c. 27, s. 40.

Against whom it prevails.

Is assignable.

In the case of

company.

money, payable by instalments, the lien was not lost. (Collins v. Collins, 31 Beav. 347.) Nor is the lien lost by an improper payment to the vendor's solicitors. (Wrout v. Dawes, 25 Beav. 369.)

The lien prevails against the purchaser and his heir; against volunteers claiming under him; against sub-purchasers with notice; sometimes against sub-purchasers without notice. (Rice v. Rice, 2 Drew. 85; Sugd. V. & P. 682, 14th ed.) And against assignees whether in bankruptcy or claiming under an assignment for the benefit of creditors. (Fawell v. Heelis, Amb. 724.)

The lien is assignable by parol (Dryden v. Frost, 3 Myl. & Cr. 670), but the assignee will take it subject to any prior incumbrances created by the vendor. (Lacy v. Ingle, 2 Ph. 413.)

A vendor of land to a railway company who have entered and used it sales to a railway for the purpose of their railway, is entitled to the same lien on land for the unpaid purchase-money and the same remedies for enforcing it as an ordinary vendor. See Wing v. Tottenham, &c. R. Co., L. R., 3 Ch. 740 (where the vendor was held entitled to a sale); Munns v. Isle of Wight R. Co., L. R., 5 Ch. 414 (where an order was made for a receiver), and the cases there quoted.

At common law.

MONEY CHARGED
UPON OR PAYABLE
OUT OF LAND.

The word "mortgage" in 17 & 18 Vict. c. 113, has been extended by 30 & 31 Vict. c. 69, so as to include the lien. As to a lien on real estate for an unpaid legacy, see Barker v. Barker, L. R., 10 Eq. 438. An unpaid vendor has not at law any lien on the title deeds for his purchase-money. (Goode v. Burton, 1 Ex. 189. See also Hope v. Booth, 1 B. & Ad. 498; Baker v. Dewey, 1 B. & C. 704; Lampon v. Corke, 5 B. & Ad. 606; Oxenham v. Esdaile, 3 Y. & J. 362; Hooper v. Ramsbottom, 4 Camp. 121; Harding v. Ambler, 3 M. & W. 279.)

See further on this subject, Mackreth v. Symmons, 1 White & Tud. L. C. Eq. 289.

(d) It was questioned in Pawsey v. Barnes (20 L. J., Ch. 393; 15 Jur. 943), whether the share of the produce of real estate, devised to trustees upon trust to sell, was a sum charged upon or payable out of land within this section. (See Bowyer v. Woodman, L. R., 3 Eq. 313, p. 252, post.)

In 1807, a devisee of one undivided third part of real estates, which were subject to a term of 5,000 years to raise money for payment of debts and legacies created by the will of a testator, executed a mortgage in fee of such third part to bankers in trust to raise by sale or mortgage a debt due to them within three calendar months with interest, and also from time to time to raise any further advances which they might make. In 1809, a suit was instituted for administration of the estate of the testator. The mortgagees were not parties to that suit, they being in ignorance of their interest; but they were made parties to a supplemental suit in 1841. No steps had been taken by the mortgagees to raise any money under the deed of 1807: it was held, that their claim was barred by the 2nd, 24th and 40th sections of this act, as no proceedings had been taken to substantiate the claim, and no part of principal or interest had been paid. The existence of the prior term did not affect the question, because the statute makes no distinction between a reversion and property in immediate possession. (Humble v. Humble, 24 Beav. 535; 3 Jur., N. S. 1289. See Re Bermingham's Estate, I. R., 5 Eq. 147, ante. p. 163.)

Money due on a bond by an ancestor is not a sum of money payable out of land within this section. (Roddam v. Morley, 2 K. & J. 336; 1 De G. & J. 1.) A testator being indebted by bond devised real estate to his son for life, with remainder, subject to a term for the payment of legacies, to his grandson in tail, and died. Upwards of twenty years after the date of the latest of the bonds the tenant for life and his assignee for value filed a bill against the tenant in tail and the legatees, alleging that the tenant for life had paid off the bonds and seeking to stand in the shoes of the obligees as against the inheritances. The tenant in tail pleaded the statute, the other legatees did not. Held, that the payment of the bonds by the tenant for life did not constitute him an incumbrancer on the estate, and that the bonds themselves being more than twenty years old the presumption was

that they had been satisfied. (Morley v. Morley, 5 D., M. & G. 610; 25 L. J., Ch. 1.)

In 1816, A. mortgaged an estate to B., and covenanted to pay the mortgage-money; and, in July, 1817, A., and B. as his surety, conveyed the property to C., on trust to sell and pay, first, a debt due from A. to C., which A. and B. also covenanted to pay; and, secondly, to pay B.'s debt. In August following, A. executed to B. an equitable charge on other property to secure the same debt. In 1834, C. sold the estate, and applied the produce in part payment of his demand. In 1842, a bill was filed by B. against A. to realize the equitable charge: it was held, that, until the trust of the deed of July, 1817, was exhausted in 1834, the covenant in the deed of 1816 subsisted wholly unaffected by time; that the debt and the personal remedy to recover it subsisted at the time the bill was filed, and that the equitable charge was therefore then operative. (Bennett v. Cooper, 9 Beav. 252; 10 Jur. 507; 15 Law J., Ch. 315.)

The statute cannot be applied to a case where there is no assignable person liable to pay the charge, no person who by the delay could be induced to suppose that the charge was abandoned or merged, and where the rent out of which the interest of the charge ought to be paid is receivable by, and belongs to, the same person who is entitled to the interest. In 1773, a tenant for life paid off a charge of 25,000l. affecting the settled estates. He died in 1837, having in the meantime taken no steps for keeping the charge alive: it was held, that notwithstanding more than twenty years had elapsed, and that there had been no part payment or acknowledgment, the charge still existed in favour of his representatives, and had not been defeated by this section. (Burrell v. Earl of Egremont, 7 Beav. 206. See Lord Kensington v. Bouverie, 7 D., M. & G. 144; Baldwin v. Baldwin, 4 Ir. Ch. R. 501; Lord Carbery v. Preston, 13 Ir. Eq. R. 455.) To bring a charge within the operation of this section, there must be a hand to receive as well as a hand to pay, and the party to receive must be capable of releasing and giving a discharge. (Carthy v. Daunt, 11 Ir. Eq. R. 29; Carroll v. Hargrave, I. R., 5 Eq. 123.)

In 1812, A. conveyed lands on trust to pay an annuity, and subject thereto for himself in fee. By a settlement in 1825 he charged the lands with a sum to be raised at his death, and in 1830 he mortgaged the lands by depositing the title deeds and the deed of 1812. The mortgagee, who in 1832 first had notice of the settlement, in 1834 entered and continued in possession, and in 1835 bought in the annuity. A. died in 1866. Held, that the mortgagee had not acquired a title by possession as against the trustees of the settlement of 1825. (Thorpe v. Holdsworth, L. R., 7 Eq. 139.)

3 & 4 Will. 4,

c. 27, s. 40.

An express trust by deed or will for the payment of portions out of Express trust. land may, notwithstanding the expiration of twenty years, be enforced against a trustee under the exception in sect. 25, or under the exception grafted upon it. (Young v. Lord Waterpark, 13 Sim. 204; affirmed on appeal, 15 L. J., Ch. 63; Blair v. Nugent, 3 J. & Lat. 658; Lawton v. Ford, L. R., 2 Eq. 97.) A person entitled to a sum of money charged upon land assigned it to trustees, in trust to secure the payment of a debt, and after payment thereof in trust for himself: it was held, that he could not, as against his creditor, insist that the trust was barred by the Statute of Limitations. (Heenan v. Berry, 2 Jones & L. 303.)

In 1806, bonds for payment of money were given by B., with warrants of attorney to confess judgment. The conditions were to pay the principal upon the death of B., with interest on the first bond from the day of its date, and on the latter from the day of the death of the obligor. The obligees were T., a son of the obligor, and C., in whom the bonds were vested as trustees of the marriage settlement of G. upon trusts for the benefit of the children of the marriage. In 1807, the real estates of B. were settled upon T., one of the obligees, subject to a term of 300 years, for raising 5,000l., which was to be applied in satisfying a debt, and the remainder was to go towards payment of judgment and specialty debts then owing by B. The obligor died in 1816, leaving his son T. his executor, who survived his cotrustee C., and died in 1836. On the death of T., R. came into possession

S.

R

3 & 4 Will. 4, c. 27, s. 40.

LEGACIES.

Share of residue.

of the estates. On a bill filed by the children of G. against R. and his children, who were entitled to the estates subject to the term, and also against the owners of the term, praying for an account and payment of the amount due on the bonds, and that the same might be decreed to be well charged on the lands included in the term: it was held, that the bonds did not come within the description of judgment and specialty debts now due and owing, and therefore were not a charge upon the estate subject to the term, but that the children of G. were entitled to be paid out of the general assets of the obligor, of which the money to be raised by the term formed part. (Burrowes v. Gore, 6 H. L. Cas. 907; 4 Jur., N. S. 1245.) It was held, also, that the Statute of Limitations was inapplicable, because, although the money was secured by bonds, that was only an additional mode of securing the discharge of a trust which could not be discharged until the person who entered into the obligation, who was in the nature of a trustee, actually paid the money; and, further, because the person who was to pay the money to the trustees was liable beyond his legal obligation, which liability could only be got rid of by actual payment. (Ib.) See further the note to sect. 25, ante, p. 201 et seq.

(e) Doubts were entertained whether this section extended to any legacies not charged on land; but it has been held to be also applicable to legacies payable out of personal estate only. (Paget v. Foley, 2 Bing. N. C. 679; 3 Scott, 120; 1 Jebb & S. 343; Sheppard v. Duke, 9 Sim. 569; Henry v. Smith, 2 Dru. & War. 391; O'Hara v. Creagh, 1 Long. & T. 65.)

An executor who had possessed assets sufficient to pay a legacy, died leaving it unpaid, and having charged his real estates with his debts. The right to sue for the legacy as such, having been barred by lapse of time, it was held, that it could not be claimed under the charge of debts. (Piggott v. Jefferson, 12 Sim. 26.)

Residuary property was held to be within this section, where a present right to receive the residue had accrued thirty years ago, and it was not contended that any suit was necessary for ascertaining the amount of the residue. (Prior v. Horniblon, 2 Y. & Coll. 201.) With regard to the meaning of the word "legacy" in this section, Shadwell, V.-C., was inclined to think that, where the act speaks of a legacy, it does in effect speak of a share of a residue; and it does not make any difference between a share of a residue and a legacy. But then that appeared to him to be a very important point, on which he was not bound to give an opinion then. (Christian v. Devereux, 12 Sim. 271.)

More than twenty years after the death of the testator, the representative of one of his executors and the residuary legatee under his will filed a bill against the representative of the co-executor to recover residuary assets of the testator alleged to have been possessed by the co-executor. It was held that the plaintiffs were barred by this section as to assets possessed by the executor more than twenty years before the filing of the bill, but they were not barred as to assets possessed by him since that time. (Adams v. Barry, 2 Coll. 290.) Where a fund is set apart to answer an annuity, the Statute of Limitations cannot be set up against the residuary legatee on the death of the annuitant forty years afterwards; but it can as against a pecuniary legatee whose legacy was payable on the testator's death. (Bright v. Larcher, 27 Beav. 130; 4 De G. & J. 608.)

Where the person liable for the payment of a legacy and the person entitled to receive it are the same, no question of limitation under the statute can arise. (Binns v. Nichols, L. R., 2 Eq. 256.)

Where a testator's estate is so heavily charged with mortgages that it is uncertain whether a legatee will ever be paid his legacy, it seems to be doubtful whether it can be said that he has a present right to receive it within this statute. (Ravenscroft v. Frisby, 1 Coll. C. C. 22.) Legatees whose legacies were charged on real estate, subject to prior charges, were not affected by lapse of time so long as any of the prior charges subsisted. (Faulkner v. Daniel, 3 Hare, 212. See, however, Proud v. Proud, 11 W. R. 101.) Where a testatrix bequeathed legacies payable out of a fund to which she was entitled in reversion, it was held that a present right to

receive the legacies did not accrue until the reversion fell in. (Earle v. Bellingham, 24 Beav. 448.) Ordinarily the right to receive a legacy accrues twelve months after the testator's death. (Benson v. Maude, 6 Mad. 15.) See further, as to a present right to receive under this section, p. 244, post.

3 & 4 Will. 4,

c. 27, s. 40.

An annuity payable out of personalty only is a legacy within this section. Annuities. (Re Ashwell's Will, Johns. 112.) As to whether such an annuity, unsecured by bond or covenant, would be extinguished by twenty years' nonpayment, see Sugd. R. P. Stat. 138; Darb. & Bos. Stat. Lim. 126.

An express trust for the payment of legacies out of land is not barred by Express trust. the lapse of twenty years under this section. (Watson v. Saul, 1 Giff. 188. For what constitutes such a trust see note to sect. 25, ante, p. 205.) The case of personalty bequeathed to executors upon express trusts appears to be different. In Cadbury v. Smith (L. R., 9 Eq. 37), which was the case of a legacy, Romilly, M. R., said: "It has been determined in Scott v. Jones (4 Cl. & F. 382) and that class of cases, that if a testator gives real and personal estate in trust to pay debts and legacies, that is no bar to the Statute of Limitations; for if a testator merely imposes upon his executors that which it is their regular duty to do, he does not, except as to real estate, create a trust." Where, however, a sum of money was bequeathed to an executor upon the trusts of a will, and was severed by him from the testator's estate, and the interest applied upon the trusts of the will, it was held that the executor had constituted himself a trustee, and that a suit to make the executor account was not barred by this section. (Phillipo v. Munnings, 2 Myl. & Cr. 309; explained in Harcourt v. White, 28 Beav. 309.) And where a legacy was bequeathed to A., and the executor stated in his residuary account that he had retained in trust the amount of A.'s legacy, and afterwards paid over the residue, it was held that he had constituted himself a trustee for A., and that A.'s remedy was not barred by this section. (Tyson v. Jackson, 30 Beav. 384.) As to the period when the character of an executor is merged in that of trustec, see the authorities given in Darb. & Bos. Stat. Lim. 119, and Charlton v. Earl of Durham, L. R., 4 Ch. 433.

M., having appointed his daughter and her husband his residuary legatees and executors, and having bequeathed 2,000l. to his daughter for her separate use, died in 1841. The husband paid all M.'s debts and legacies except this 2,000l. In 1866, the testator's daughter died, indebted to the plaintiff for money lent to her upon the credit of her separate estate. It was held, that a trust had been created for the separate use of the testator's daughter, and that the plaintiff's right to enforce it against her husband was not barred by this section. (Hartford ▾ Power, I. R., 2 Eq. 204; 16 W. R. 822.)

As to the effect of an order in lunacy in preserving the right to recover a legacy, see Re Walker, L. R., 7 Ch. 120.

In an early case it was decided that the Statute of Limitations could not be pleaded in bar to a suit for a legacy, although it had been due twenty years. (Anon. Freem. C. C. 22; see also 1 Vern. 256.) But though the statute could not be pleaded, yet in many cases it was adopted where there was no fraud, and the parties had permitted the assets to be distributed without claiming the legacy for thirty-five or forty years, and was a good defence by way of answer upon the ground of raising a presumption of payment. (Higgins v. Crawford, 2 Ves. jun. 572; Pickering v. Stamford, Ib. 582; S. C., 4 Br. C. C. 214; Jones v. Turberville, Ib. 115; S. C., 2 Ves. jun. 11.) And it seems that the lapse of twenty years after the testator's death without any demand of the legacy would have been sufficient to afford a presumption of payment. (Montressor v. Williams, 1 Rop. on Leg. 792 (2nd ed.).) In the case of Campbell v. Graham (1 Russ. & Myl. 453), in which this doctrine was much considered, a party bought a legacy, which was assigned to him twenty-seven years after the testator's death, and four years more elapsed before the filing of the bill: and it was held, that he was barred by length of time, and on an appeal to the House of Lords such decision was affirmed. (2 Cl. & Finn. 429.) Under particular circumstances, thirty-nine years was held not sufficient to raise the pre

Presumption of payment of legacies.