3 & 4 Will. 4, c. 27, s. 40. Claims to estates of intestates. "Present right to receive." Disabilities. PART PAYMENT. sumption of the payment of legacies. (Shields v. Rice, 3 Jur. 970.) But it has been held, that a legatee might recover a legacy, though ten years had elapsed without any demand. (Lee v. Brown, 4 Ves. 362.) From mere lapse of time the only presumption that can be drawn is this; that which ought to have been done at the commencement of, the period has been done at the end. Presumption of payment of a legacy from mere length of time cannot be inferred where such payment is out of the ordinary course of transactions. A payment in presenti of a sum due in futuro cannot be presumed without evidence of it. (Prior v. Horniblow, 2 Y. & Coll. 206.) Legacies charged on real estate were held, under the circumstances of the case, to be payable, notwithstanding the lapse of more than forty years from the testator's death to the filing of the bill; the stat. 3 & 4 Will. 4, c. 27, not being applicable. (Ravenscroft v. Frisby, 1 Coll. 16; 13 Law J. (N. S.) Ch. 153.) (f) The provisions of 3 & 4 Will. 4, c. 27, s. 40, have been extended to the case of claims to the estates of persons dying intestate by 23 & 24 Vict. c. 38, s. 13; but no provision appears to have been made for the case of claims to a residue undisposed of by will. It has been held, that this section is no bar to a claim made by the next of kin of an intestate to leaseholds of the intestate which had been retained by the administrator, who was also heir-at-law to the intestate, under a belief that the property was freehold. (Reed v. Fenn, 35 L. J., Ch. 464; 14 W. R. 704.) See also, as to lapse of time in the case of claims to an intestate's estate, Cresswell v. Dewell, 4 Giff. 460; 12 W. R. 123. (g) It seems difficult to attach any definite meaning to the words "present right," &c., and to say whether those words mean such a right as the party could render effectual, or whether the disability to proceed effectually either at law or in equity prevents the right from being considered as having accrued within the meaning of this section. (See Dillon v. Cruise, 3 Ir. Eq. R. 82.) This section appears to be capable of two interpretations; the one construing the terms within twenty years next after a present right to receive the same to mean, within twenty years after the first present right to receive the same accrued to any person; the other construing them to mean within twenty years next after a present right, established or accrued under any of the securities mentioned in this clause. (2 Jebb & Symes, 109.) It will be observed that the word "first" does not precede the word "accrued" in the 40th section as it does in the 2nd section, and the omission of that word may in many cases make a material difference in the construction of this section. (Ryan v. Gambie, 2 Ir. Eq. R. 334.) Tindal, C. J., said, "by the words, 'present right to receive the same,' we understand an immediate right without waiting for the happening of any future event." (Farran v. Beresford, 10 Cl. & Finn. 334.) See the cases as to a present right to receive a legacy, ante, p. 242. The present right to receive must accrue to some persons capable of giving a discharge for or release of the same; and accordingly, where a legacy was bequeathed to an infant, time was held to run from the period when she attained her majority. (Piggott v. Jefferson, 12 Sim. 26.) When time has commenced to run against the right of a legatee to recover his legacy, and the executor is subsequently found a lunatic, time will nevertheless continue to run. (Boldero v. Halpin, 19 W. R. 320.) (h) The entering into the receipt of rents and profits by a mere equitable mortgagee was held sufficient to keep the personal remedy for the mortgage debt from being barred by 21 Jac. 1, c. 16. (Brocklehurst v. Jessop, 7 Sim. 438.) But where a bond was entered into as a collateral security for money secured by mortgage, and the interest being in arrear, the mortgagee took possession, and remained in possession upwards of twenty years without taking interest otherwise than by the receipt of rents and profits, it was doubted whether his remedy on the bond was not barred by the Statute of Limitations. (White v. Hillacre, 3 Y. & Coll. 597.) See, however, Williams v. Welch (3 D. & L. 565, ante, p. 237), where it was held, that payments of an annuity kept alive the right to revive a judgment which had been given as collateral security for the annuity. A payment of principal or interest of a sum of money charged on land c. 27, s. 40. by a person expressly or impliedly authorized to make it will be equivalent 3 & 4 Will. 4, to a payment by the party liable, so as to prevent the operation of the statute. But a payment by a mere stranger will not. (Homan v. Andrews, 1 Ir. Ch. Rep. 106. See Linsall v. Bonson, 2 Bing. N. C. 245.) The person designated in this section as the person by whom money is payable must evidently mean, in the case of a claim by equitable lien, the person entitled to the land on which the charge is sought to be fixed. The money is payable by him in the only sense in which it is payable by any one. Unless he pay it he will lose his land, and it is obviously in that sense that the statute in such a case speaks of the money as payable. (Toft v. Stephenson, 1 De G., M. & G. 40; quoted by Bacon, V.-C., L. R., 12 Eq. 54.) The words in sect. 40, "by the person by whom the same shall be payable or his agent," apply equally to the making of a payment, and the signing of an acknowledgment. (Chinnery v. Erans, 11 H. L. Cas. 115; 13 W. R. 20.) The payment of interest on an Irish mortgage, made by a receiver appointed over the estates mortgaged, is a payment by an agent of the party liable within this section. But the payment of interest on a mortgage by a mere stranger would not be a payment within this section. (Ib.) On the death of a mortgagor, in 1833, his widow (who was entitled to dower) took possession of the mortgaged estate, with the consent of her sons who were co-heirs, and she paid interest on the mortgage. In 1858, the mortgagee instituted a suit to realize his mortgage, in which it did not appear that any interest had been paid by one of the co-heirs during the interval: it was held, that this co-heir was bound by the payments, the widow being regarded either as his agent, in which case the payment of interest had been made on his behalf, or else as a stranger, in which case the co-heir himself was barred. (Ames v. Mannering, 26 Beav. 583.) In 1824, a legatee, who was entitled to a legacy charged upon land devised to a tenant for life, mortgaged it to another; and at the same time the legatee and the tenant for life, as surety, gave a bond to the mortgagee as a collateral security for the amount. The legatee died in 1847, and the tenant for life in 1851. The mortgagee had received, previous to and in 1846, interest in part from the tenant for life. It was held, that the payment by the co-obligor and surety was sufficient to keep the debt alive against the principal debtor, notwithstanding 19 & 20 Vict. c. 97, ss. 5, 14. (Seager v. Aston, 26 L. J., Ch. 302; 5 W. R. 548.) The plaintiff, being indebted to his bankers in a considerable balance, assigned to them an annuity to secure 2007., part of that balance; and afterwards mortgaged to them the equity of redemption of a leasehold estate to secure his general balance of 1,500l. The bankers received the annuity to an amount which exceeded the debt of 2001. and interest and it was held, that the surplus was a payment sufficient to keep the mortgage debt alive within this section. (Staley v. Barrett, 26 L. J., Ch. 321; 5 W. R. 188.) Where a testator devised part of his real estates charged with the payment of half his debts to A., and the other part of his real estates charged with the payment of the other half of his debts to B., and A. had made payments of interest on a bond debt of the testator within twenty years: it was held, that these payments did not keep alive the debt against B. (Dickenson v. Teasdale, i De G., J. & S. 52.) If estates A., B. and C. are included in one mortgage, and payments of interest are made out of the rents of A., these payments are sufficient to keep alive the remedy of the mortgagee against estates B. and C. Thus, in 1776, a mortgage was created of three estates in the counties of Cork, Kerry and Limerick. In 1784, a receiver was appointed under the provisions of the Irish Act, 11 & 12 Geo. 3, c. 10, who entered into possession of the Limerick estate only, out of the rents of which the interest on the mortgage continued to be paid. In 1790, the mortgagor sold the equity of redemption in the Cork and Kerry estates, and assigned certain outstanding charges to a trustee for the protection of the purchaser, but no reference was made to the mortgage. It was held by the House of Lords, that the mortgage debt was kept alive by the payments of interest against the Cork and Kerry estates. (Chinnery v. Evans, 3 & 4 Will. 4, c. 27, s. 40. ACKNOWLEDG- Who is agent. By whom an acknowledgment may be made. 11 H. L. Cas. 115; 13 W. R. 20.) See also Pears v. Laing, L. R., 12 Eq. 41, and the cases quoted under 3 & 4 Will. 4, c. 42, s. 5, post. (i) Under the 40th section the acknowledgment of the right must be given in writing, signed by the person by whom the same shall be payable or his agent, to the person entitled or his agent. Under the 42nd section the acknowledgment must be given to the person entitled to the interest or his agent, signed by the person by whom the same was payable or his agent. The words of these two sections being nearly the same, it seems to be the more convenient course to arrange the decisions as to acknowledgments under both these sections in one note. As to acknowledgments under the 14th and 28th sections, see ante, pp. 183, 214. In reference to this and the other sections, where the acknowledgment to or by the party interested or his agent is made sufficient (see ante, p. 183), it will be necessary to consider who is in law the agent and by what acts he is so constituted, where no direct proof of agency is produced. An agent need not be authorized in writing. (Coles v. Trecothick, 9 Ves. 250.) Wherever a specific appointment of an agent is necessary, a subsequent recognition of acts done by him in that capacity is better even than a previous authority. (James v. Bright, 5 Bing. 533.) When one means to act as agent for another, a subsequent ratification by the other is always equivalent to a prior command. (Foster v. Bates, 12 Mees. & W. 233.) See Trulock v. Robey, 12 Sim. 407, ante, p. 215, where the vicechancellor, said: "It is not necessary to make a person an agent, that he should have an actual authority to act; it is quite sufficient that the grandfather acted as the agent of his grandchild; and that she, when she came of age, adopted what he had done on her behalf." And see generally, as to the extent and nature of an agent's authority, Pole v. Leask, 28 Beav. 562, affirmed in H. L., 9 Jur., N. S. 829. In Toft v. Stephenson (1 De G., M. & G. 28), an inquiry was directed as to the agency of an attorney who had acknowledged a debt. The principle of some of the cases, as Whippy v. Hillary (3 B. & Ad. 399, post), and Routledge v. Ramsay (8 Ad. & Ell. 221), decided upon the statute 9 Geo. 4, c. 14, although in language different from that of 3 & 4 Will. 4, c. 27, ss. 40, 42, may be applicable to some cases arising under the latter statute. (Holland v. Clark, 1 Y. & Coll. N. C. 169.) See the cases under 9 Geo. 4, c. 14, quoted post. All that the act of 3 & 4 Will. 4, c. 27, ss. 40, 42, requires is, that some acknowledgment of the right to the sum claimed shall have been given in writing, signed by the person who represents the estate out of which it is payable, or by his agent. Thus, where an estate was devised to a trustee in trust to sell and pay the testator's debts, and subject thereto in trust for A., an acknowledgment of a debt in writing signed by the trustee or his agent, was held to be sufficient to preserve the creditor's right of suit for twenty years after the acknowledgment was given; but such an acknowledgment will not impose on the trustee any personal liability to pay the debt. (Lord St. John v. Boughton, 9 Sim. 219.) In 1811, an agreement was entered into for the purchase of freehold land, and the purchaser was immediately put into possession. In 1827, the purchaser before any conveyance was made to him and before he had paid any part of the purchasemoney, died, having devised the land to trustees. The trustees disclaimed and others were appointed by the Court of Chancery. In 1834, the attorney of these trustees wrote to the assignees of the vendor (who had become bankrupt), stating that the purchase-money was ready to be paid on the purchase being completed. On a bill filed by the assignees in 1844, to enforce the lien: it was held, that the trustees were persons by whom the purchase-money was payable within the meaning of this section; also that the acknowledgment of their attorney in 1834 was sufficient within the meaning of the exception in the act to withdraw the case from its opera-tion, and for this purpose to bind the cestui que trusts. (Toft v. Stephenson, 1 De G., Mac. & G. 28; 7 Hare, 1.) An acknowledgment by a mortgagor of more than six years' arrears of interest being due upon a first mortgage, does not preclude a puisne mortgagee from relying on the statute. (Bolding v. Lane, 1 De G., J. & S. 122; 11 W. R. 386. See the remarks on this decision in Chinnery v. Evans, 11 H. L. Cas. 115; 13 W. R. 20.) In Re Fitzmaurice's Minors (15 Ir. Ch. R. 445), where the tenant for life of the equity of redemption in a mortgaged estate gave a written acknowledgment to the mortgagee, it was held that the mortgagee's right to recover more than six years' interest was kept alive against the remainderman. 3 & 4 Will. 4, c. 27, s. 40. In admitting acknowledgments, under the 40th section, to the person To whom. entitled or his agent, the court has not restricted itself within narrow limits. If it be made in a schedule, affidavit or answer, it is sufficient, although it may be said that in those cases it is made to the court and not to the party. Sugden, L. C., thought the decisions right, and that they proceeded upon a liberal but yet a fair and just construction of the statute. (3 Jones & L. 677.) In December, 1821, A. and B., creditors of D. deceased, jointly advanced a sum of money to save leaseholds of D. from eviction for nonpayment of rent; as between themselves the money was advanced in equal moieties: to a bill filed by B. against A., and the devisees in trust of D., to raise the sum so advanced, the trustees, in April, 1824, put in an answer admitting the payment of the salvage money. In a suit instituted in January, 1844, for a sale of D.'s estate, A. filed a charge on foot of his salvage claim: it was held, that the acknowledgment contained in the answer of April, 1824, was sufficient to take the claim out of the bar of this section. (Blair v. Nugent, 3 Jones & L. 673). In a case where it was contended that an acknowledgment by the debtor to a third person took a case out of this section, Alderson, B., said that will not do; there must be that from which a continuing contract may be inferred. If a man were to write a letter to a third person acknowledging the debt, it would not take it out of the statute. Lord Tenterden's Act, 9 Geo. 4, c. 14, explains that. (Grenfell v. Girdlestone, 2 Y. & Coll. 676.) In order that an acknowledgment may have the effect of taking a demand out of the operation of the 42nd section of this statute, the acknowledgment must appear to have been made with a view of rendering the party making it liable to the demand, and it must have been made to the party entitled to make the demand. (See Grenfell v. Girdlestone, 2 Y. & Coll. 676). Therefore, where a bill was brought against two executors for payment of a legacy bequeathed to the plaintiff's wife, and for arrears of interest accrued since her death; and the plaintiff, with the view of taking his demand for interest out of the operation of the 42nd section of the statute, relied on certain letters written by one of the executors to his the plaintiff's attorney it was held,-1st. That the letters had not the effect ascribed to them by the plaintiff, because they had been written by the party not for the purpose of charging himself but of throwing the burden of payment on the co-executor; 2ndly. That even if they had been written for the purpose of charging himself, it was questionable whether they would avail the plaintiff, inasmuch as they were written before the plaintiff had taken out letters of administration to his wife. (Holland v. Clarke, 1 Y. & Coll. N. S. 151.) : ment. A bill was filed in April, 1840, by a party as administrator of his wife, What amounts to seeking the recovery of the principal and interest of a legacy of 150l. an acknowledgbequeathed to her by a testator who died in 1811. The legatee attained her majority when the legacy vested, and married before the year 1825. In December, 1825, the two executors of the testator gave the plaintiff a written acknowledgment, whereby they separately and jointly acknowledged that they owed the plaintiff 150l. for the legacy and 50%. interest thereon. It was held to be clear that this document precluded the defendants from all benefit under this section. (Holland v. Clarke, 1 Y. & Coll., Ch. 151.) The mortgagees of the works and tolls of a harbour company agreed in 1818 that the exchequer loan commissioners making an advance of money under the provisions of the acts of parliament regulating them, the tolls of the harbour should be applied, first, in paying interest on the commissioners' advances: secondly, in paying interest on prior mortgages; and, thirdly, in reduction of the principal until it was paid off. The tolls being insufficient to keep down the interest on the advances, the commissioners sold the subject of their security to a railway company, with notice of the 3 & 4 Will. 4, c. 27, s. 40. Master's report. Insolvent's schedule. When must the acknowledgment under sect. 40 be made. Decisions on this section applicable to questions under 16 & 17 Vict. c. 118, s. 22. agreement. In 1833, before the sale to the railway company, one of the In Harty v. Davis (13 Ir. L. R. 23), it was decided that it is competent for the conusor of a judgment, by an acknowledgment given, no matter how long after the rendition of the judgment, provided it be within twenty years before the commencement of the action or suit, to keep the claim alive in favour of the person entitled to it; in fact, that this section operates only as a suspension of the remedy and not as an extinguishment of the right. (See Waring v. Waring, 5 Ir. Ch. R. 6; but see contra, Gregson v. Hindley, 10 Jur. 383; Homan v. Andrews, 1 Ir. Ch. R. 106.) (k) Decisions upon this section are applicable to questions raised upon sect. 22 of the C. L. P. Act (Ireland) 1853. (Cronin v. Dennehy, I. R., 3 C. L. 289). |